Case number: OIC-137557-F7F0X1

Whether the HSE was justified, under section 15(1)(c) of the FOI Act, in refusing access to all records relating to the applicant within a specific HSE facility (Hospital X), on the grounds that the request would cause substantial and unreasonable interference with, or disruption of, its work

 

04 August 2023

 

Background

In a request dated 19 August 2022, the applicant sought access to all records relating to her since the start of her service within Hospital X from July 2017 to date. She also sought access to records relating to her held by six named HSE staff members. In a decision dated 7 November 2022, the HSE part-granted the applicant’s request. The HSE released the applicant’s personnel file with redactions under section 37(1) of the FOI Act. The HSE also appeared to inform the applicant that part of her request was voluminous (section 15(1)(c) refers) and it requested that she specify the “exact type of records” being sought.

On 24 November 2022, the applicant requested an internal review of the HSE’s decision. She also amended the scope of her request to records from seven named staff members from 2018 to the date of her original request. The applicant did not seek an internal review to the HSE’s decision to withhold access to information from the records released under section 37(1). Following further correspondence between the applicant and the HSE, it issued an internal review decision on 21 April 2023. The HSE affirmed its original decision to refuse access to certain information in her personnel records under section 37. While it did not actually state that it was refusing the remainder of her request under section 15(1)(c) of the FOI Act, it cited section 15(1)(c) and set out a list of the factors it had regard to. Among other things, the HSE stated that one of the named staff members was on extended leave and it had “no easy access” to the emails in their account. It said that accessing these emails would require searches of backup tapes, which were generated on a monthly basis. It said that 72 tapes would cover the timeline of the applicant’s request and that she would be required to pay the cost of €500 per tape upfront before this part of her request could be processed. On 19 April 2023, the applicant applied to this Office for a review of the HSE’s decision to refuse access to emails from named individuals relating to her.

During the course of this review, the HSE provided submissions in support of its reliance on section 15(1)(c) of the FOI Act. The Investigating Officer provided the applicant with details of the HSE’s submissions and invited the applicant to make further submissions or comments on the matter, which she duly did.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the HSE in support of its decision. I have also had regard to the correspondence between the HSE and the applicant, as set out above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the applicant reduced the scope of her request in terms of the timeframe at internal review stage, she also appeared to broaden the scope by adding a seventh staff member whose emails she was seeking. I note that the HSE did not raise any objection to this. However, it is important to note that section 12(1)(b) of the FOI Act requires those seeking records to provide sufficient particulars "in relation to the information concerned to enable the record [containing such information] to be identified by the taking of reasonable steps". This Office’s understanding of section 12 is that, effectively, while the scope of an FOI request can be narrowed at internal review stage and/or in an application for a review to this Office, the scope cannot be broadened beyond what was originally sought.

Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse, under section 15(1)(c) of the FOI Act, the applicant’s request for all records relating to her from 2018 to August 2022, held by six members of HSE staff.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request

where in the opinion of the head, granting the request would, by reason of the number or

nature of the records concerned or the nature of the information concerned, require the

retrieval and examination of such number of records or an examination of such kind of the

records concerned as to cause a substantial and unreasonable interference with or

disruption of work (including disruption of work in a particular functional area) of the FOI

body concerned.

However, section 15(4) provides that a request cannot be refused under section 15(1)(c)

unless the body has assisted, or offered to assist, the requester in amending the request so

that it no longer falls to be refused under that section. As such, before I can consider

whether the HSE was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4).

Section 15(4)

The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4), however, this Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

During the course of this review, the Investigating Officer asked the HSE if it had offered to assist the applicant with a view to amending her request for re-submission so that it no longer fell within section 15(1)(c). She also asked the HSE to provide copies of relevant correspondence in this regard. In response, the HSE referred to its decision letter.

In response to a request for further clarification, the HSE said that it attempted to assist the applicant to narrow the scope of her request, although this appears to have been done by telephone. The applicant has provided copies of her email correspondence with the HSE from 24 August to 24 October 2022, for the purposes of this review. From a careful examination of the emails concerned, I note that the FOI Officer emailed the applicant on 24 August 2022, and asked her to ring him to discuss her request. The applicant replied a few days later to say that she had been on leave and invited the FOI Liaison Officer to telephone or email her about the request. No further emails relating to the scope of the applicant’s request have been provided to this Office by either party. It appears that no further substantive written correspondence was exchanged between the applicant and the HSE before its original decision issued. I note that in response to the HSE’s request in its original decision that she narrow the scope of her request, the applicant reduced the timeframe for relevant records in her internal review request, as set out above.

This Office asked the applicant to confirm whether conversations took place between her and the HSE in an effort to narrow the scope of her request. In her response, the applicant said that, following telephone contact with the relevant FOI Officer, it was her understanding “that he was in the process of collating” the records sought “from named managers as per [her] request”. She said that he was uncertain whether it would be possible to access the records of one staff member, but that he would “seek clarification” on this. According to the applicant, she understood that the records were being compiled to be released. This appears to be supported by correspondence sent from the HSE FOI Officer to the applicant in October 2022, which stated that “[t]he vast majority of the documents you are seeking have been collated and I am presently processing same”.

Section 15(4) of the FOI Act states that a request cannot be refused under section 15(1)(c) unless the body has assisted or offered to assist the applicant in amending the request. In this case, I am willing to accept that that, the HSE made an initial attempt to contact the applicant in order to assist her in narrowing the scope. What I must assess here is whether the attempts by the HSE to assist the applicant to narrow the scope can be considered sufficient under the FOI Act. As set out above, its original and internal review decisions did not clearly state that it was refusing her request for access to the emails of the staff members concerned on the basis of section 15(1)(c). Furthermore, I note that having received the HSE’s original decision, the applicant amended her request in an apparent effort to reduce the scope. During the course of this review she also informed this Office that she did not seek copies of emails forwarding HSE circulars or Covid-19 pandemic payment details, etc. I also note that in her submissions to this Office, the applicant disputed that there would be confidential patient information contained in relevant emails. She also argued that information about rosters and pandemic payments went through other managers, not named in her request. It seems clear to me that the applicant would have been willing to engage if the HSE had made further efforts in this regard. Furthermore, I must have regard to the email from the HSE which stated that the majority of the records sought had been collated, leaving her to believe that her request would be granted and that no further refinement was necessary.

While the HSE’s position is that it attempted to assist the applicant as required by section 15(4) of the FOI Act, there is no written record of this assistance. In the circumstances of this case, the HSE has not satisfied me that it provided sufficient assistance to the applicant in order to narrow the scope of her request. Having regard to the above, I find that the HSE did not comply with section 15(4) and was not justified in refusing the applicant’s request on the basis of section 15(1)(c) of the FOI Act.

I am satisfied that the most appropriate course of action to take is to annul the HSE’s decision and to remit the matter back to it, and direct it to conduct a fresh decision making process in relation to the applicant’s request. If the HSE intends to rely on section 15(1)(c), it must comply with the requirements of section 15(4) beforehand and it must engage with the applicant and to offer her assistance, keeping a written record of this assistance, to amend the request so that processing it no longer causes an unreasonable interference with, or disruption of, work. Furthermore, it seems clear to me that further engagement between the parties would have been of great help in clarifying which records were sought by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision to refuse the applicant’s request under section 15(1)(c) of the FOI Act. I direct the HSE to conduct a fresh decision-making process.  

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Sandra Murdiff
Investigator