Decision
Ms. X & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-149884-W7P9P4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149884-W7P9P4
Published on
Whether the HSE was justified in refusing access to additional records relating to the applicant within her colleagues emails on the basis that no further records exist, and whether it was justified in refusing any records within her former manager’s email account on the grounds that the request would cause substantial and unreasonable interference with or disruption of, its work.
10 September 2025
This matter was the subject of a previous appeal to this Office. The applicant originally submitted the request to the HSE on 19 August 2022 seeking access to all records relating to her since the start of her service as a nurse within a specific HSE service from July 2017 to date (this date was later amended to 2018). She also specifically sought access to records relating to her held by six named HSE staff members. The matter was appealed to this Office on 19 April 2023 following the HSE’s refusal to release certain records under section 15(1)(c) of the FOI Act, at the time. Following an investigation by this Office, the Investigator annulled and remitted the matter back to the HSE in August 2023 for fresh consideration.
On 4 September 2023, the HSE issued a fresh decision to the applicant. The decision set out that the HSE had partially granted access to scheduled emails from three of the relevant staff members and an Employee Relations file. It noted that it was refusing access to some of the records on the basis of section 37(1). It further noted in the decision that there was a balance of documents which was still being processed in relation to the request and that it would need an additional 20 working days, and that the remaining documents would be scheduled by the 2 October 2023. On 15 September 2023, the applicant contacted the HSE and outlined that she was requesting that a review be carried out in respect of the information not received from the four files scheduled, she alleged that information was missing including attachments to emails, emails concerning certain meetings and further that there was no chronological order to some of the records.
On 24 October 2023, the HSE issued an updated decision to the applicant including two new folders of staff members personal emails, a general email folder and an updated folder for one of the previous files wherein previous numbering errors were apparent. With respect to one of the folders requested by the applicant concerning her manager’s emails (“Ms C”), the HSE stated that it was unable to access the emails of the staff member in question who had been on an extended period of leave. It said that it could not gain access to her account short of undertaking an e-discovery process. It stated that it was aware that that in all likelihood there were emails which probably met the scope of the applicant’s request within this staff members account, however, it maintained that it was unable to access them.
In respect of the further emails scheduled, the HSE maintained its application of section 37(1) to parts of some of the records in question as the documents contained the personal information of third parties other than the applicant. On 14 November 2023, the applicant submitted a request for an internal review of the HSE’s decision. She argued that across the 7 total files, information related to her remained missing and further that the HSE had failed to address her arguments concerning this which she raised in her letter of 15 September. She also requested an explanation for the redactions across some of the files, wherein she stated that entire pages had been removed pertaining to her from her own personnel file.
On 29 January 2024, the HSE issued an effective position to the applicant affirming its original decision on the request. On 18 June 2024, the applicant applied to this Office for a review of the HSE’s decision on her request.
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 to the submissions made by the HSE in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the HSE informed this Office that it had gained access to the emails of the applicant’s former manager “Ms C” but that it was refusing to consider for release any records in question under section 15(1)(c), i.e. on the basis that the request was too voluminous. I will consider the HSE’s reliance on this exemption below.
Separately, while engaging with this Office the applicant also confirmed that she was not seeking access to third party personal information related to either patients in the records or other relevant third parties. She confirmed that she was seeking information in relation to herself and patient safety concerns she had raised (patients not identified), work load safety concerns, redeployment, changes of job description, grievance, office space allocation, dignity at work concerns which she alleged had not been provided. Based on my review of the records, I am satisfied that all of the redacted information across the seven files concerns the personal information of patients, or the leave arrangements/personnel information of other staff members and accordingly, having reached an agreement with the applicant, it has been removed from the scope of this review.
Accordingly, this decision is solely concerned with whether the HSE was justified in refusing access to further records, which would come within the scope of her original request as identified by the applicant in her internal review request, on the basis of section 15(1)(a), and access to her former manager’s emails on the basis of section 15(1)(c).
Before I address the substantive issues arising, I would like to make a preliminary comment.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
Section 15(1)(a) – Record does not exist/cannot be found
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. Our role in a case such as this 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 their decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the HSE provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
The applicant at both original and internal review decision stage argued that the HSE had failed to identify and schedule a number of records which she believed existed in the files of the relevant staff members. In particular, the applicant alleged that across the seven scheduled folders information was missing from each related to correspondence concerning the industrial relations matters, emails sent by the consultant psychiatrist, emails re OT allocation, emails re nursing meetings and metabolic screening management, NIMS, or correspondence to the relevant parties concerning the dignity at work complaint raised by the applicant. The HSE did not address any of the alleged missing correspondence upon issuing its effective position to the applicant.
Following the request for submissions which issued from this Office, the HSE stated that a clear instruction was given to all the staff members concerned as to the scope of documentation required as laid out in the original request. It stated that the staff members concerned searched through their own emails and printed all correspondence that they believed came under the scope of the request, confirmation of same was given verbally to the FOI Office. It is the HSE’s contention that this was an adequate search. It further noted, that with regards to any emails that may not have been included in the release that was provided to the requester, it is conceivable that some of these documents were rendered unavailable following the migration of email inboxes from the 8 regional based domains into a central shared domain (database) this project was referred to as the HealthIrl Migration program.
In the applicant’s response to the matter, she attached copies of certain emails which she argued should’ve been included in some of the relevant files. She maintained that she was aware that correspondence had been sent to one of the staff members around April 2022 and May 2022 pertaining to safety risks and concerns about a number of patients seen by CMHN within the catchment area and attempts made to redeploy the applicant. Essentially, the applicant maintains that information remains missing from the files.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of all relevant records coming with the scope of the applicant’s FOI request. Having regard to the HSE’s submissions, to the specifics of the missing records raised by the applicant in her request for internal review, and the HSE’s failure to address same. I am not satisfied that it has provided sufficient detail for this Office to determine that the searches which it carried out were adequate. The HSE has not adequately addressed the applicant’s contention that further records ought to exist and has provided minimal details in relation to the searches which were conducted to address the applicant’s request. The HSE was offered more than one opportunity at decision stage to explain whether it considered that the further records which the applicant alleged were missing could have been, or whether they existed, the HSE failed to provide any response in respect of the specific items raised. Other than saying searches were carried out by the relevant staff members and that verbal confirmation of this was provided to the FOI Office, no details of how searches were carried out have been provided, for example whether key word searches were carried out and if so, what search terms were used.
In addition, the HSE mentioned that some of the records related to this request may “no longer be available” following a migration project to a new system, however the HSE has not explained whether searches can be carried out on this system for the missing records or whether searches can be carried out for items deemed missing at all. Where relevant information has either migrated from the emails of a staff member to another system, I would have expected the HSE to have at least investigated the matter further to provide a more definitive answer.
In the circumstances outlined above, I simply cannot conclude that the HSE has taken all reasonable steps to ascertain the whereabouts of all records requested by the applicant. Accordingly, I annul the HSE’s effective decision to refuse access to further records falling within the scope of the applicant’s request under section 15(1)(a) of the Act and I direct the HSE to consider the applicant’s request afresh in relation to any relevant records referenced in the applicant’s request which have not been scheduled. The applicant will have a right to an internal review and to seek a review by this Office if necessary.
Section 15(1)(c) – Request too voluminous
Section 15(1)(c) provides for the refusal of a request where the FOI body considers that 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 records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body (including disruption of work in a particular functional area).
However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. Accordingly, before I 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.
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). 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.
As stated above, the HSE initially refused access to Ms C’s email file on the basis that it was unable to access her inbox as she was on extended leave. At original and internal review decision stage, the HSE stated that short of undertaking an e-discovery process it would not be possible to proceed with this portion of the applicant’s request. During this review, following a call with a member of the HSE, I was informed that the HSE had re-gained access to the emails in Ms C’s inbox, but that access to same was now being refused on the basis of section 15(1)(c).
The HSE submitted that as the applicant’s former manager was no longer an active member of staff within the HSE and that it would be necessary for a member of the FOI team to search her inbox and determine what emails are relevant to the scope of the request. The HSE argued that the request was quite clear in terms of what documentation was required, namely that the applicant did not wish to receive any information about rosters, circulars or pandemic information, and that she only wished to receive copies of direct peer to peer emails from named individuals. It argues that this restriction does not change the fact that it would now be necessary to read several hundred emails to determine their relevance to the scope specified. The HSE referred to a recent OIC ruling OIC-134956-Y6H1N2 in support of its arguments. It pointed out that the OIC felt in this case that a figure of 15 minutes of processing per email was excessive however on the basis of the number of emails being requested numbering in excess of 1000 they were willing to accept that the time and resources that would be required to retrieve and examine the records in order to process the request would cause a substantial and unreasonable interference with, and disruption of, its work.
The HSE considered that it would take an average of 3 – 5 minutes per email from Ms C’s inbox to read and assess for its applicability to the scope of the request. It states therefore it can deduce a number of emails that is a fair indication of excessive and unreasonable i.e. voluminous. If argued that if an average time of 4 minutes per email processing i.e. reading and interpreting this would allow a total of 15 emails to be processed per hour (complex email threads and attached documents could dramatically reduce the number processed per hour). It stated that if the maximum amount a body can charge for a FOI request is considered as €700 this would equate to 35 hours of work charged at €20 search and retrieval fees to reach the maximum charge threshold and that 35hours @ 15 emails an hour would equal 525 emails in total.
It maintains that this time period would only account for reading and accessing whether it come under the scope and would not include time required to redact the relevant portions under applicable portions of the act. It concluded by saying that the fact that the amount that could be charged for this FOI would exceed the €700 maximum charge would reasonably indicate that the request is voluminous by its very nature.
As the HSE applied section 15(1)(c) during this Office’s adjudication of the HSE’s decision, it is evident that the HSE made no offer of assistance to the applicant to refine her request. The terms of section 15(4) are clear. The FOI body must assist, or offer to assist, the requester in amending the request before it can be refused under section 15(1)(c). I find, therefore, that the HSE did not comply with the provisions of section 15(4) in this case. My finding that the HSE did not comply with the provisions of section 15(4) is, of itself, sufficient for me to find that it was not justified in refusing the applicant’s request under section 15(1)(c) of the FOI Act, and I find accordingly. In the circumstances, I am satisfied that the most appropriate course of action is to annul the decision of the HSE and to direct it to undertake a fresh consideration of the request.
I understand that this may be frustrating for the applicant. However, I do not consider it appropriate to simply direct the release of the records which I have not seen, or in circumstances where the HSE has indicated that it considers that processing the request, as it is currently worded, would cause a substantial and unreasonable interference with, or disruption of, its work. I strongly recommend engagement between both parties before the HSE considers the request afresh with a view to clarifying any ambiguity the HSE may have in relation to the applicant’s request. I would note that the applicant said in correspondence to this Office that she would be willing to reduce her search terms and I would encourage the HSE to engage further with the applicant concerning this matter.
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 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.
I would also note that this is the second time this request has been appealed to this Office and subsequently annulled and remitted back to the HSE for further consideration on the basis that the HSE did not offer assistance under section 15(4) before refusing a request under section 15(1)(c). I would encourage the HSE to consider thorough engagement with the applicant to ensure that there is no ambiguity, and to offer a chance to the applicant to refine her request should the current iteration be too voluminous.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision to refuse parts of the applicant’s request under sections 15(1)(a) and 15(1)(c). I direct the HSE to conduct a fresh decision making process.
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.
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Rachael Lord
Investigator