Case number: OIC-137796-D8C0H9

Whether the HSE was justified, under section 15(1)(c) of the FOI Act, in refusing access to all records relating to the applicant from 2017 to date held by a specific HSE facility (Hospital X), on the grounds that the request would cause substantial and unreasonable interference with, or disruption of, its work

 

22 August 2023

 

Background

I understand that the applicant is employed at the Hospital concerned. In a request dated 19 August 2022, the applicant sought access to all records from the start of her service with Hospital X from October 1994 to date, to include all paper and electronic records relating to her held by six named HSE staff members.

On 26 August 2022 the HSE wrote to the applicant informing her that, “as per our conversation” the scope of her original request was considered excessive as she was seeking “27 years of records with a very large volume of emails from six staff members”. The HSE cited section 15(1)(c) of the FOI Act and asked the applicant to confirm the amendment of the timeframe of her request to August 2009 until 19 August 2022, as discussed by telephone. The HSE also indicated that it would probably be extending the time to consider her request by 20 days (section 14 of the FOI Act refers).

In a decision dated 7 November 2022 the HSE refused the applicant’s request in part. It released her personnel file with redactions under section 37(1) of the FOI Act. While the HSE did not actually state that it was refusing the remainder of her request under section 15(1)(c), it stated that given the volume of records that would generally fall within the scope of the part of her request relating to “all emails”, it was now requesting that she specify the exact type of email records to which she was seeking access. It cited section 15(1)(c) and said that in its current format, the retrieval and processing of documents relating to this part of her request would “place an unreasonable burden” on the HSE. On 24 November 2022, the applicant requested an internal review and further narrowed the scope of her request to records from 2017 to the date of her request. She did not seek a review of the HSE’s reliance on section 37 to release her personnel file in part. The applicant also referred to and enclosed a copy of a letter of the same date which appeared to make a new FOI request for hardcopy and electronic records from 2017 to date, held by eight named staff members of the HSE. It is unclear to this office whether the HSE processed this as a fresh FOI request.

On 24 April 2023, the HSE stated that it was affirming its original decision. It referred to the partial release of the applicant’s personnel file which it said was done in an attempt to provide her with some information rather than “refusing [her] request outright”. It also quoted section 15(1)(c) and set out a number of factors it had regard to in considering whether her request would cause a substantial and unreasonable interference with its work. While it did not actually state that it was refusing her request for records held by the staff members in question on this basis, this appears to have been its intention. On 25 April 2023, the applicant applied to this Office for a review of the HSE’s decision.

During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions. The Investigating Officer 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 two additional staff members whose records she sought. I note that the HSE did not raise any objection to this. I also note that in her application for a review to this Office, she referred to seven staff members, only five of which were included in her original FOI request. 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 August 2017 to 19 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) before doing so.

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), it 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 HSE said that it initially contacted the applicant by telephone to discuss her request, and its revision. It said that it subsequently confirmed the agreed amendment to the timeframe by email dated 26 August 2022. The HSE also referred to its comments in its decision letter, wherein it requested that the applicant narrow the scope of her request further. As set out above, the applicant narrowed the scope of her request again at internal review stage.

Having regard to the exchanges between the parties during the consideration of the applicant’s request, I am satisfied that the HSE offered to assist the applicant in narrowing the scope of her request before it made its decision to refuse her request. Accordingly, I am also satisfied that it complied with the provisions of section 15(4) before refusing the applicant’s request under section 15(1)(c).

Section 15(1)(c)

As set out above, in its original decision on the applicant’s amended request, the HSE stated that “given the volume of records that would generally fall within this type of request… in its current format, the retrieval and processing of the documents you have specified… would place an unreasonable burden on the service.” It indicated that it considered the applicant’s request to include records regarding her work rosters, “Covid pandemic payment information, HSE circulars and numerous emails, to do with confidential patient information”.

In its internal review decision on the applicant’s further amended request seeking records from 2017 to 2022, the HSE stated that it had regard to a number of factors including the nature and number of the records sought. It repeated these considerations in its submissions to this Office, although I note that its submission described the applicant’s request as concerning records from 2009 onwards. The HSE stated that the applicant’s request was “exceedingly broad” and would encompass an “excessive number of records”. It said that the records concerned were emails, which were stored in the named individuals’ email inboxes and were “only accessible by these individuals”. It contended that the six staff members in question would be required to undertake an “intensive trawl” of their email accounts, and the records located would then need to be “printed and handed over to the relevant research officer for processing”. It also said that given the time period involved, the records sought “would possibly encompass hundreds of emails, email threads and documents”.

In response to further queries from this Office, the HSE stated that it could not quantify or estimate the number of records within the scope of the applicant’s request, as amended. It stated that given the “massively broad” scope of the request and the persons to whom it relates, it was of the view that it would be a “huge body of work to undertake”. It stated that most of the individuals named in the request are senior nurse management, who would be “copied daily on dozens of pieces of administrative and clinical correspondence that could potentially include the information that is being sought”. It said that the records concerned could include policy updates, rosters, multidisciplinary team meetings, incident reports, clinical correspondence, occupational health vaccination documentation and Covid 19 pandemic information.

The HSE also stated that each document would need to be evaluated as to relevance and then redacted to remove information that is not relevant to the applicant’s request. It said that “[g]iven the broad scope [of the request] this would encompass a huge number of documents”. It also stated that it had “one full time research officer” in the relevant function area, “along with a recent addition of a clerical officer” working part-time. It stated that “these two individuals cover all of the FOI [and] GDPR roles for two counties”. In its submissions to this Office, the HSE said that it was “more than willing” to work with the applicant in order to “give her the information that she requires”, it merely asked that she provide a “more specific scope… along with a more reasonable timeframe” which would allow the records sought to be retrieved “without placing an excessive strain” on its offices which are “presently inundated with FOI requests, GDPR requests and Section 41b Data protection requests”.

In its internal review decision, the HSE also noted that one of the named staff was on extended leave, so that it had “no easy access” to that individual’s records. Accordingly, it said that the “only option” was for “an external company to undertake a search of the backup tapes for HSE emails relating to this staff member”. It said that a list of search terms would have to be agreed before the appropriate emails could be extracted from the backup tapes. It also stated that a new backup tape was generated for HSE emails on a monthly basis. The HSE said that the applicant’s amended request for records from 2017 would cover “6.5 years of tapes”, which “would equate to 78 tapes”, at a cost of €500 per tape, which would need to be paid by the applicant before this part of her request could be processed.

Analysis

It seems to me that the main thrust of the HSE’s arguments in this case is that processing the applicant’s request would cause disruption to a functional area that has limited staff and resources, and is already “inundated” with access requests. While it is a matter for the HSE to ensure that it has afforded adequate resources to the FOI function, it is important to note that the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function.

The HSE also argued that the applicant’s request would cover an “excessive number of records”, however it was not in a position to quantify the number of records concerned. The HSE also stated that the records to be examined would include “dozens of pieces of administrative and clinical correspondence” received by each of the staff members concerned on a “daily basis”. However, it seems to me that many of the records, which the HSE believes would need to be examined for relevance, would not directly relate to the applicant in this case. For instance, it appears that it did not seek to clarify whether the applicant was actually seeking access to emails forwarding circulars or other staff information where she was merely part of a circulation list. I also note that the HSE does not appear to have attempted to clarify with the applicant whether she was willing to exclude records relating to patient or clinical matters. I further note that the applicant has made no comment in relation to the backup tapes the HSE deems necessary to access certain records.

In relation to the HSE’s argument that all records of potential relevance would have to be manually printed before being considered for release, it is not clear to me that this would be the most efficient way to process the applicant’s request. In this regard, I note that the Decision Maker’s Manual of the Central Policy Unit states that an FOI body relying on section 15(1)(c) to refuse a request will not be able to include additional time or work needed because its filing system or index searching is cumbersome or inefficient.

However, in the circumstances of this case, where the HSE has stated that the records are held individually by the specified members of staff, each of which would be required to search five years’ worth of emails for relevant records and where the applicant has not narrowed the scope of her request in terms of the type of records at issue, I am willing to accept that the steps necessary to process her request would cause an unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the HSE. Accordingly, I find that the HSE was justified in refusing the applicant’s request under section 15(1)(c) of the FOI Act, and I affirm its decision.

For the benefit of the applicant, I should state that it is, of course, open to her to submit a new request for records to the HSE. If she chooses to do so, she may wish to narrow the scope of her request further so that it would not fall to be refused under section 15(1)(c). I would also encourage the parties to engage further to clarify exactly what type of records are sought if the applicant decides to make a new request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant’s request under section 15(1)(c) of the FOI Act.

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