Decision
Mr. Y & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-138296-P6X8V6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-138296-P6X8V6
Published on
Whether the HSE was justified in refusing access to records relating to day services utilised by the applicant’s son.
8 October 2025
The applicant’s son in this case is a vulnerable adult who receives day services from Organisation X through a HSE placement as referenced in this decision.
In a request dated 14 October 2022, the applicant sought access to the following information related to his son’s proposed service and service delivery with Organisation X, he clarified that this request for information extends to HSE records with respect to his son’s needs. He specified the following elements of his request:
1. The Service Level Agreement between the HSE and Organisation X, outlining the clinical, therapeutic, care, transport and other necessary attendant services. The cost which Organisation X are billing monthly and annualised to the HSE within the scope of the Service Level Agreement.
2. Any drafts, communication between Organisation X and the HSE regarding his son’s needs and debate / discussions between the HSE and Organisation X around the quantum of service which his son would need and be given by the service provider.
3. Notwithstanding, 1 and 2 above, exchanges in writing between HSE personnel familiar with his son’s case and Organisation X personnel regarding his son’s needs and services being provided outlined at 1 above.
In a decision dated 7 December 2022, the HSE part – granted the applicant’s request, it scheduled 2 records initially, including a Service Level Agreement and correspondence. It refused access to the service level agreement on the basis of section 36(1)(b) and partially granted access to the various correspondence withholding information under section 37(1) and 30(1)(c) from release. On 17 December 2022, the applicant sought an internal review of the HSE’s decision, the applicant stated that he failed to understand how information relating to the service level agreement between the HSE and Organisation X in relation to his son’s care could be considered commercially sensitive information, or how it could prejudice the competitive position of Organisation X, the applicant argued that his son’s best interest would be served by knowing what services the HSE and Organisation X had agreed on. In relation to record 2, the applicant stated that in relation to the redactions across pages 1, 2, 3, 4, 5, 7, 8 and 11 is not of material benefit to the requester in being able to evaluate the quantum of service referred to. The applicant further argued that where information had been refused no reasonable explanation had been given.
The HSE issued its effective position on 5 May 2023. The HSE varied its original decision, the decision set out that it examined a further 349 records which were made available for consideration, but which had not been available at the time of the original decision. These records included correspondence between the HSE and organisation X, the applicant and both, and notes of meetings, discussions etc. The decision set out that with regard to the Service Level Agreement (SLA) with Organisation X, that it was not specific to the applicant’s son but rather the service as a whole and on that basis would not be released. In respect of the new records scheduled, the decision maker applied exemptions across the records on the basis of sections 30(1)(a)/(b) and (c), 36(1)(b), 37(1) and 37(7).
On 15 May 2023, the applicant applied to this Office for a review of the HSE’s decision. A section 23 notice issued from this Office to the HSE, requesting further details concerning the exemptions applied to be furnished to the applicant. This statement of reasons for the HSE’s decision issued on 29 June 2023.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made by the relevant parties who made submissions, the applicant’s comments in his application for review and to correspondence between this Office and the relevant parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. I wish to apologise at the outset for the delay in finalising the review, which was due, in apart to the volume of material requiring examination and a number of attempts to clearly clarify the scope of the review.
During the course of this review, I reached out a number of times to the applicant to try and clarify the scope of the review in order to proceed with the matter. The applicant has expressed his belief, that records which were scheduled and the records which the HSE has provided during the course of the review, do not satisfy the criteria of records which he and his wife have requested. In particular, the applicant has stressed that he is seeking information which relates to the precise services that the HSE was funding the third-party contractor for in respect of his son.
In his submissions to this Office, the applicant stated that “I never sought “commercially sensitive ”information, we understand that to be figures, but we have sought in review meetings to seek clarity on what services [his son] was receiving and what services the HSE was funding for [his son ].”
The applicant specifically noted that he was seeking records which “specified his sons personalised and individualised needs and funding of same .”
The applicant stressed in correspondence his belief that records existed within the HSE which provided the information sought and which had not been made available to him. It seems to me that based on correspondence with the applicant, although he has stated that he is not preoccupied with financial figures relating to the funding of the third party service by the HSE, he wishes to understand based on comments made by the HSE and the identification of the clinical needs of his son, what services were specified in terms of his son’s care and how the services were funded.
Upon a review of all records scheduled by the HSE and upon reaching out to the HSE a number of times for clarity on the matter, I have noted that the additional records provided by the HSE in respect of the applicant’s son’s request do not appear to satisfy the applicant’s request, as stated by him. I have also gone through the 351 records originally provided by the HSE to this Office subject to redactions, I note from my engagement with the applicant, and from my review of those relevant records while some of them touch on the applicant’s son’s needs and the engagement between the HSE and Organisation X to meet those needs in some circumstances, none of those records touch on any kind of written or paid agreement specific to the applicant’s son and the clinical services being provided to him, outside of the Care Plans which the HSE provided to the applicant. Based on my engagement with the applicant, I understand “clinical services ” to be services related to his son’s psychiatric, medical and occupational care. I am satisfied based on the above that those records fall outside the scope of the review based on my engagement with the applicant.
Accordingly, the scope of this review is concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records coming within the scope of the applicant’s request and in particular whether adequate searches have been carried out in relation to an SLA or document which sets out the clinical services being availed of between the HSE and Organisation X and the funding of same which specifically relate to the applicant’s son.
Before I address the substantive issues arising, I wish to make some preliminary comments.
Firstly, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
In his submissions to this Office, the applicant highlighted his concerns and disappointment with the HSE’s and Organisation X’s administration of his son’s care. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
It is also important to note that a review by this Office is considered to be “de novo ", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Section 15(1)(a) – Records do not exist / cannot be found
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Our role in such a case 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 in arriving at their decision and must assess the adequacy of the searches carried out 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 and to the applicant’s response for the purposes of this review.
The HSE stated that in respect of the applicant’s original request, that no specific SLA existed for the applicant’s son, but that the SLA in question relates to a contract for all services between Organisation X and the HSE for the provision of services for a number of service users. It specifically stated that the clinical, therapeutic care and transport arrangements specific to the applicant’s son or any user are not itemised in any SLA. The HSE stated that the applicant did have a personal care plan, which the applicant may have been confusing. It stated that accordingly no specific SLA existed which contained the information requested. The HSE also stated that the applicant’s son’s day service provision would not have been included in the overall 2021 SLA, and that the 2022 SLA was part released to the requester with the overall financial figures redacted. The applicant has confirmed he is not seeking this overall figure which is not specific to his son.
While the HSE has affirmed that there is no SLA which outlines the details sought by the applicant, it did state that there is a process in place to monitor and respond to the applicant’s son’s needs within day service provision. During the course of the review, the HSE aimed to provide additional information across 5 newly scheduled records which were held by Organisation X. The HSE maintained that while no SLA specific to the applicant’s son’s needs existed, the information across these records may provide some insight into the care being provided by Organisation X. The records included his son’s care plan, his education plan, behaviour support plan and his weekly activities as a service user within Organisation X. I am satisfied that based on the wording of the applicant’s request that these records fell outside the scope of what was originally requested in terms of this review, but that they may contain some information of interest to the applicant. The HSE also clarified that the comments relating to the cost of his service being significantly above average are due to the length and breadth of the service which has been provided to the applicant’s son over the years, rather than relating to a specific HSE figure for his care with Organisation X. The HSE has said that there are a variety of services which have been provided to the applicant’s son over the years, and the costs accrued in those circumstances have been above average.
During the course of the review the HSE also reached out to Organisation X, and sought further information on the searches conducted. The service confirmed that no additional records existed specifying the information sought by the applicant and confirmed the searches had been carried out on Service User Charts, via the Electronic Records by the Disability Services Manager in Louth/Meath, on Hard Copy records by the Officer of the Manager of Disability Services in Meath and on Service User Charts held by the HSE.
The applicant upon receipt of the additional documents in question stated that he found it difficult to accept, given the specific and unique features related to his son’s care how a general agreement between the HSE and Organisation X could capture the “significantly above average level of funding ” which he knew to be allocated for a HSE funded service for his son. The applicant re-iterated that he was given assurances by HSE senior management ahead of his son joining the service that funding would be provided for his son’s needs, including clinical needs. The applicant maintains that his expectations in respect of this were not met despite the level of funding allocated. He maintains that with this in mind, it is hard to believe that no further paperwork exists/can be sourced. The applicant has pointed to references to the 'above average' level of funding the HSE apparently allocated for his son’s needs to be met, and on that basis maintains it is difficult to accept the HSE’s assertion through this process that his sons needs and services are all dealt with in one service contract which apparently the HSE has for all attendees.
The applicant further noted that individualised and personalised plans and services are the norm in such arrangements, and that as such it is difficult to accept the HSE’s assertion that no such documents exist.
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 the 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 and also 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 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.
As I have outlined above, the HSE provided this Office with its reasoning for concluding that no further records existed, and the applicant was provided with these details. Given the HSE’s explanation that it does not hold an individual SLA for the applicant’s son, but that a general SLA exists for service provision for a number of patients yearly and the fact that the HSE sought to provide the applicant with additional records which may have provided the information sought in another format concerning the services available, it seems to me that the HSE has adequately addressed why no relevant records exist or can be found in relation to the first part of the applicant’s request. I would also note that the applicant’s son’s personal care plan contains details related to the clinical services which the applicant’s son is in receipt of as needed but that it does not contain the cost of these services. It seems to me that the applicant is of the view that a document or proposal which detailed all clinical elements of his son’s care and the corresponding cost should be in existence, from my review of the extensive amount of records scheduled it is clear that there was back and forth concerning the applicant’s son’s ongoing care within the service, with the applicant’s parents and with the HSE. However, in respect of the exact information which the applicant has requested in part 1 of his request, and which he has subsequently clarified that he believes should exist, I am satisfied based on my review of the documents and engagement with the HSE that an adequate explanation has been provided in terms of why there is no record which provides this exact information.
I am also satisfied based on my engagement with the applicant that he is not seeking commercial information concerning transport costs or similar, but that rather he is seeking a record containing an aggregated figure which the HSE has assigned Organisation X for clinical services specific to his son. For the reasons set out above, I am satisfied that such a record does not exist.
I appreciate that it is the applicant’s position that the records released to him do not contain the information he has requested and that he will therefore be disappointed with my decision. It is worth noting that it is not within the remit of this Office to examine whether records should or ought to exist. As I have outlined above, our role is confined to a consideration of whether the HSE has taken all reasonable steps to locate the records sought by the applicant and whether it has adequately explained why it considers that no further relevant records exist. In this case I am satisfied that it has.
I find that the HSE was justified under section 15(1)(a) of the FOI Act, in refusing access to an SLA, or any record concerning details of the applicant’s son’s clinical needs and the specific funding of same on the basis that no such record exists.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE has justified its refusal of the applicant’s request on the basis that no such record exists.
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.
____________________
Rachael Lord
Investigator