Decision
Mr. X & Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-159213-T3N4N4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159213-T3N4N4
Published on
Whether the HSE was justified in refusing access, under section 15(1)(c) of the Act, to all records that mention the applicant
9 July 2025
On 12 February 2025, the applicant submitted a request to the HSE for all mentions of him under any form (variations of name and generic job title) by all staff in the hospital where he worked as well as in his particular unit. He also specifically requested the same information from the accounts of 20 named individuals, including the CEO of the HSE. He requested all relevant records from the period 2 June 2023 to 12 February 2025.
On 28 April 2025, the applicant requested an internal review on the grounds that a decision had not been issued by the HSE within the statutory time. On 23 May 2025, the HSE refused the applicant’s request under section 15(1)(c) of the Act. The HSE also detailed its efforts to assist the applicant in refining the scope of his request and said that his request does not comply with section 12(1)(b) of the Act which provides that a request should contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. On 26 May 2025, the applicant applied to this Office for a review of the HSE’s decision.
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 correspondence outlined above and to the submissions made during the course of this review. 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 the applicant’s request under section 15(1)(c) of the FOI Act.
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) of the Act 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 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.
The FOI Act is silent on the precise nature or level of 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.
I should add that while there is an onus on FOI bodies to assist, or to at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held.
In its submissions to this Office, the HSE said the applicant’s request extended to all records relating to him and any variations of his name and a generic job title reference by all staff in Procurement (c. 800 staff) and other named individuals including the National Director for Procurement and the CEO of the HSE. The HSE said the type of records sought was not specific and the potential number of records in the HSE with any reference to the generic job title or the applicant (and any variations of same) and efforts to retrieve and review would be excessive and unreasonable and interfere with day-to-day operations of the HSE. The HSE said its IT Department confirmed that there is no central IT way to search and retrieve the information digitally and retrieval would have to be done manually. The HSE said that five invitations were issued to the applicant to amend his request including an invitation to discuss his request over the phone at a date and time suitable to the applicant. It said that the applicant never took up the offer of a telephone conversation. The HSE said that it may have been possible to provide more ‘meaningful assistance’ if the applicant had responded to the invitation to discuss his request over the phone.
In his application to this Office, the applicant said that he made repeated and clear efforts to cooperate with the HSE to amend or clarify the scope of his request. He said that he engaged in phone conversations with two previous FOI officers in an effort to limit the request. He stated that, when a third officer contacted him after the statutory deadline, he did not reject the offer of a phone call and simply asked for written clarification of what elements of the request were considered too broad, so that he could respond constructively. The applicant argued that this is a reasonable approach given his prior attempts and the need for a written record. The applicant said that, despite this, no meaningful guidance or examples were provided in line with the requirement to assist him under section 15(4) of the Act. The applicant said that the HSE insisted that he identify a “specific record or discrete number of records ,” which he argued is not a fair or reasonable requirement under the FOI Act. He said that the purpose of the Act is to enable access to information where the requester may not know exactly what records exist. The applicant said that he acted in good faith and remains willing to refine or narrow his request.
I note that there were a number of exchanges of correspondence between the HSE and the applicant about the scope of his request and that offers were made to assist the applicant in amending his request so that it no longer falls to be refused. The HSE informed the applicant that it considers his request too broad. It said that no specific record or discrete number of records are identified and that it is unclear whether any records exist. It said that, as it stands, his request would require examination of the record systems of 20 named individuals (including the CEO of the HSE and the retired National Director for Procurement) – this would require the examination of all individuals emails, c-drives, shared folders, hardcopy filing systems, phone records etc. of said individuals; retrieval of any records with a reference to the applicant by name and by his job title. The HSE asked the applicant if he can identify a specific record or discrete number of records. During the course of his exchanges with the HSE, the applicant provided some background to his request and said that he is willing to engage with the decision maker to amend or clarify his request so that it can be processed without substantial disruption to the HSE. In reply to the HSE, the applicant said that its continued request that he “identify a specific record or discrete number of records ” is not reasonable as he is not seeking documents that he already possesses or knows to exist. He said that he is seeking access to information precisely because he does not know what specific records are held.
It is clear that the HSE offered to assist the applicant in this case. Is also clear in my view that the applicant was willing to engage with the HSE in an effort to clarify and/or reduce the scope of his request. I fully accept that there will be occasions where it is difficult for an FOI body to suggest amendments to a request so that it no longer falls to be refused under section 15(1)(c). However, in my view the HSE suggestion to the applicant that he identifies a specific record or discrete number of records does not amount to a reasonable offer of assistance. It seems to me that there was further scope for the HSE to engage with the applicant when he sought clarification from the HSE about its suggestion to identify specific records.
As noted above, the applicant said that he does not know what specific records are held. I note that the applicant asked the HSE for an example of how his request could be reformulated. Despite its initial efforts to assist the applicant, in my view the HSE could have engaged more meaningfully with the applicant’s attempts to understand how he could narrow the scope of his request. Indeed, I note that the HSE said it may have been possible to provide more ‘meaningful assistance’ if the applicant had responded to the invitation to discuss his request over the phone.
Having regard to all the circumstances, I find, on balance, that the HSE has not complied with section 15(4) in this case. In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of the HSE and to direct it to undertake a fresh consideration of the request. If the HSE intends to rely on section 15(1)(c) in making its new decision, it must comply with the requirements of section 15(4) beforehand. While I am making no finding on whether section 15(1)(c) would have applied in this case had I found that the HSE complied with section 15(4), it seems to me that the applicant’s request is, indeed, quite broad. I would encourage the applicant to engage with the HSE with a view to establishing the precise nature of the information he wishes to access. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the HSE’s fresh 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 Act on the basis that it did not first comply with the provisions of section 15(4) of the FOI Act. I direct the HSE to carry out a new decision-making process on the applicant’s request.
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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Richard Crowley
Investigator