Case number: OIC-137874-Q6J8P5
20 October 2023
Section 39 of the Health Care Act 2004 (the 2004 Act) allows for funding to be provided to community, voluntary and not for profit agencies that provide health and social care services. The HSE is the sole funder of Safeguarding Ireland under a Grant Aid Agreement pursuant to section 39 of the 2004 Act.
On 20 January 2023, the applicant made a request to the HSE for minutes of meetings of the board of Safeguarding Ireland from 1 January 2022 to 20 January 2023. On 27 February 2023, the HSE refused the request under section 15(1)(a) of the FOI Act on the basis that it did not hold the records sought. Following a request for an internal review, on 31 March 2023, the HSE affirmed its original decision.
On 28 April 2023, the applicant applied to this Office for a review of the HSE’s decision. In her application, she argued that the records should have been requested from Safeguarding Ireland by the HSE and considered for release under the FOI Act.
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 applicant and by the HSE in support of its decision and to communications between this Office and the HSE on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to the minutes of the relevant Safeguarding Ireland board meetings.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision.
During the course of the review, this Office sought submissions from the HSE as to the reasons for its decision to refuse the applicant’s request. The HSE informed this Office that it had been agreed that Safeguarding Ireland would provide the HSE with a copy of the records sought. The HSE also said that it was willing to consider the records for release under the FOI Act.
The review before this Office solely relates to the decision of the HSE to refuse the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist as they are not held by the HSE. What I must consider is whether the HSE took reasonable steps to locate the records sought or whether it has satisfied me that they do not exist or that it does not hold the records sought. As it has since confirmed that the records exist, that they will be provided to the HSE by Safeguarding Ireland and it is willing to consider them for release, I simply cannot find that the HSE was justified in refusing the applicant’s request under section 15(1)(a).
Accordingly, I find that the HSE was not justified in refusing the applicant’s request and I annul its decision.
However, I do not believe that it would be appropriate to simply direct the release of the records concerned where no consideration has been given by the HSE as to whether they should be released. I am satisfied that the most appropriate course of action to take is to annul the decision of the HSE in its entirety, the effect of which is that it must consider the applicant's request afresh and make a new, first instance, decision on the records in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office, if she is unhappy with the HSE’s new 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 for records of meetings of the board of Safeguarding Ireland from 1 January 2022 to 20 January 2023 under section 15(1)(a) of the FOI Act, and I direct the HSE to consider the matter afresh.
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.