Decision
Mr. Z and the Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-151364-Y7V5H7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151364-Y7V5H7
Published on
Whether the Board was justified in refusing access, under sections 15(1)(a) and 37(1) of the FOI Act, to information requested by the applicant concerning medical negligence cases and his interactions with the Board
22 May 2025
In a request dated 16 April 2024, the applicant submitted a 15-part request to the Board for the following information:
1. The number of cases for medical negligence over the last 7 years.
2. The number of cases in the last 7 years that have been refused legal aid.
3. The number of cases where an appeal resulted in the applicant still not being provided legal aid regarding medical negligence applicants.
4. The total number of medical negligence cases handled and refused by [a named solicitor] who is a solicitor working on behalf of the legal aid board.
5. The total number of medical negligence cases handled and refused by [a named solicitor] who is a solicitor working on behalf of the legal aid board.
6. The total number of medical negligence applicants who had to obtain their medical files by their own action via GDPR Legislation from their GPs or other medical bodys [sic] or professionals.
7. The number of applicants for medical negligence closed without the legal aid board obtaining any independent medical opinion on the applicant's case.
8. The total number of medical negligence cases handled and refused by any legal professional or other including solicitor's [sic] working on behalf of the legal aid board.
9. All information in both manual and physical form.
10. A digital copy of my phone consultation with [a named solicitor].
11. All data sent and received in particular by [two named solicitors] of the Legal Services Section.
12. All data sent and received in particular by [a named solicitor] to Head office or any other person within the Legal Aid Board.
13. All internal data sent and received by any other third parties pertaining to my medical negligence case and file.
14. Copies of all applications for medical negligence.
15. Copies of all notes and other data of which [a named solicitor] has on file pertaining to my identity and case particularly but not limited to any data and notes taken before, during and after our single phone consultation of 2024.
Having received no response from the Board, the applicant requested an internal review of the deemed refusal of his request on 13 May 2024. As the Board again failed to issue a decision on the request within the statutory time-frame, the applicant sought a review by this Office of the deemed refusal of his request. Following correspondence with this Office, the Board notified the applicant of its position on the request on 31 July 2024. It said it had decided to grant parts 1, 2, 4, 8, and 13 and to part-grant part 3. It refused parts 6, 7 and 10, and part 3 in part, under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or could be found. It refused parts 11, 12, and 15 on the ground that full copies of the records had previously been provided to the applicant. It refused part 14 under section 37(1). Part 5 was not addressed as it was identical to part 4. Moreover part 9 was not a request for access to a record but described the format in which information was sought. On 19 August 2024, the applicant applied to this Office for a review of the Board’s decision.
During the course of the review, this Office provided the applicant with details of the Board’s submissions outlining the searches it said it had undertaken to locate certain of the records sought and its reasons for concluding that no relevant records had been found after all reasonable steps to ascertain their whereabouts had been taken. The applicant responded to our invitation to make submissions in the matter and this correspondence has been considered.
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 Board and the comments made by the applicant in his application for a review and subsequent submissions. I have decided to conclude this review by way of a formal, binding decision.
The Board provided a response to parts 1, 2, 4, 8 and 13 of the request. As the applicant has raised no concerns about the Board’s response to those parts, I will give them no further consideration. The Board also refused parts 11, 12, and 15 on the basis the relevant records had previously been provided to the applicant. This Office wrote to the applicant informing him that we proposed to remove those parts of the request from the scope of our review and asking for his comments on that proposal. We explained that we would proceed along those lines if no response was received. As we have received no such response to date, I will give no further consideration to parts 11, 12, and 15.
Accordingly, this review is concerned solely with whether the Board was justified in refusing, under section 15(1)(a) of the FOI Act, parts 3, 6, 7, and 10 of the request in whole or in part, and in refusing part 14 of the request under section 37(1).
The Board’s decision on the applicant’s request was not issued within the timeframe set down in the FOI Act. The Board should be aware of its obligations in this regard. It is incumbent on me to emphasise to the Board that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The Board should take steps to ensure that its decisions on future FOI requests issue within the relevant statutory timeframes.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the administrative refusal of an FOI request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. The role of this Office in cases involving section 15(1)(a) is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken and make a finding on whether the FOI body’s position is reasonable.
I should explain at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information sought from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
In considering whether the Board holds relevant records that contain the information sought in this case, I have also had regard to section 17(4) of the FOI Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. However, if the body does not hold a record containing the information sought and cannot search for and extract the information from electronically held records by taking reasonable steps, then that is the end of the matter. Where the search and extraction needed to collate or extract information requires an FOI body to go beyond reasonable steps, section 15(1)(a) of the FOI Act can be relied upon to refuse a request i.e. that no relevant record exists having taken all reasonable steps to locate it.
During the course of the review, the Board was invited to make submissions detailing the steps it took to identify and search for the requested records and about its records management practices generally. In its submissions, the Board said the FOI request was directed to the Internal Service Delivery Directorate to be addressed. It said that Directorate manages all solicitors and legal clerks employed by the Board and the network of Law Centres in which they work across Ireland. It said that because the Directorate is the central administrative unit for legal services in the Board, it was best placed to address queries on statistics and client files arising in legal services provided by the Board.
The Board said a request for client materials from Internal Service Delivery is always relayed to the local Law Centre and acted on by local staff as they hold any hard copy and soft copy of a client file (listed and saved on the case management system called EOS whose search function by client name/address/ etc. allows for quick identification and retrieval). It said that any file stored off-site will be accessed as necessary for a particular case, and if still being retained by the Board. It said the working direction to staff is that all records should be retrieved and forwarded for construction of the final decision on any FOI request. It said the search methods for this FOI request followed the Administrative Procedures Handbook (APH) procedure. It said that in relation to statistics, three Directorates maintain template reports that upload top-level data automatically each month and the decision-makers relied upon to answer FOI requests across each Directorate have each designed and continue to generate statistics on a monthly basis. It said they are familiar with what statistical reports exist, what do not, and therefore what FOI requests can be answered/granted having taken reasonable steps to do so, in line with the FOI Act.
Part 3 of the request was for “the number of cases where an appeal resulted in the applicant still not being provided legal aid regarding medical negligence applicants”. The Board said that the part refusal was in respect of the number of cases of the type sought, i.e. medical negligence. It said this was refused as the Board operated no data analytics function at the time through which to examine its electronic records and retrieve the records sought by reasonable means, as per section 17(4) of the FOI Act 2014. It said that locating the data sought would have required measures beyond those that might be reasonable given the resource commitments of the Board at the time. It said parts 6 and 7 were refused because the data was not available for the same reason.
This Office requested further submissions from the Board concerning the measures that would be required to provide the information sought. In response, it said that location of the data would have involved the manual searching of the records of approximately 3255 cases involving medical negligence. It said the requested records sought are medical negligence cases that were submitted for appeal but were unsuccessful and not provided legal aid, medical negligence cases that were closed without the Board obtaining any independent medical opinion and medical files that were sought by an applicant from a GP/other body.
It said that, generally, case types are recorded on the Board’s EOS case management system which enables quick identification of those civil legal aid cases with a reference number and, within each case, a scan of major items in place/phases that occurred on a case. It said the EOS version of any case may contain less detail than the hard copy file (e.g. the contents of letters, reports, etc.).
In respect of July 2024 and up to now, it said the Board does not possess the functionality to search appeals only. It said a pre-designed report exists, pulling on the Board’s case management system which can search for defined periods but that was not relevant in this case. It said it can refine a search to "Tort - medical negligence" which gives a list of all cases where a submission was made for a legal aid certificate in a medical negligence case and can identify those that were refused. It said the report does not indicate whether legal aid was granted or refused at first instance or whether the grant or refusal was on foot of an appeal. It said it would have to take each EOS number where there was a refusal and search that EOS number and look at the submissions tab and drill down through the EOS file to see the course that the application took and whether there was an appeal or not.
In respect of the information in requested record 7, the Board said there is no report that monitors medical negligence cases that were closed without the Board obtaining any independent medical opinion. It said, in practice, all applicants for legal services must provide the documentation by which the assessment of merits can be carried out at the advice stage where the law centre is investigating the merits of an application. It said, generally, the Board will expect all applicants to provide the information required to assess an application and therefore, it does not make the requests for information at advice stage for the applicant. It said the law centre may provide them with a draft FOI letter which the applicant can send directly themselves to a relevant medical practitioner/hospital outlining what documentation is required and that they are requesting pursuant to the FOI legislation. It said that determining how often this happens would only be determined by manually reviewing the data in case notes on each individual file.
In relation to medical files that were sought by an applicant from a GP/other body in part 6, it said there is no report maintained by the Board that would reveal the information sought and to retrieve the information at issue would involve a high degree of manual work outside of normal business activity that would not be reasonable. It said such a search would involve a manual trawl of both applications received and cases closed and even then it would not necessarily be a reliable way of collating a definitive answer to the request originally submitted.
It said that as there is no existing report on the information the applicant requested at parts 3, 6 and 7, a search would involve going through individual cases, checking in the first instance on EOS whether any relevant check boxes (appeal) were ticked. It said that, for the information the applicant requested, no such check boxes exist. It said any search of records regarding appeals would need to revert to a search of all text boxes or case notes, either on the EOS version of the file or the hard copy, where such existed, in line with data retention periods. On this point, it said if a manual trawl of appeals cases had been undertaken, the Board would have been limited in how far back it could go on case files.
It said the process of searching, recording and collating such cases is generally made more difficult in that Clerical Officers do not have access to all workflows (pathways) through which a medical negligence case might move from the point of receipt to the point of closure. It said they have access to certain screens/options only which would mean reliance on a sub-set of Clerical Officers who deal with appeals cases and/or solicitors who are familiar with those workflows to be able to identify the data requested, if any existed. It said that, overall, a search could have required an extension of time beyond that provided for in section 14(1) of the FOI Act.
Following correspondence from this Office in connection with this case, the Board said contact with the Internal Service Delivery Directorate was again undertaken. It said all three requests at issue were of a similar type, relating to medical negligence cases and the Directorate has confirmed the Board’s FOI Section's understanding of the case recording and reporting features of the EOS case management system. It confirmed the lack of any data report in respect of appeal matters and clarified that a labour-intensive manual search would have been the only option available to look for the records sought and that such searches would not have been without error in terms of identifying final records of interest.
As I have outlined above, the applicant was provided with details of the Board’s submissions outlining the searches it said it had undertaken to locate certain of the records sought and its reasons for concluding that no relevant records had been found. In response, the applicant offered no evidence to suggest that additional specific searches might be warranted. Instead, he simply queried whether an FOI body that cannot retrieve information sought can be seen to be in a position to comply with statutory legislation such as FOI Legislation.
It is important to note that section 15(1)(a) of the Act is an explicit acknowledgement of the fact that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. Moreover, section 17(4) is an explicit acknowledgement of the fact that there are limits to the steps an FOI body must take to collate information in order to respond to a request for information. In this case, the Board’s position is that it holds no records containing the information sought and that the steps that would be required to collate the information would go beyond the taking of reasonable steps required by section 17(4). Having regard to the details of the Board’s submissions, I accept this to be the case.
In respect of part 10, wherein the applicant sought a digital copy of his phone consultation with a named solicitor, the Board said the records that existed in relation to the telephone call with the solicitor, a typed copy of the solicitor's handwritten notes for the telephone call comprising 10 pages and 539 words, were provided to the applicant on 20 May 2024 through a reply to a Subject Access Request made under Data Protection legislation. The Board said that the applicant was informed in this communication that it has no audio data as telephone calls are not recorded and, therefore, it is not able to assist him in this regard. However, the Board acknowledged that the applicant was not given this explanation in the FOI decision letter on 31 July 2024. It apologised for this.
In response, the applicant simply said he was not satisfied that no phone record was being provided and he said that the Board should provide a policy to support this position. I see no reason to dispute the Board’s submissions that telephone calls are not recorded. While I am not aware of whether or not the Board has a written policy to indicate that calls are not recorded, it is open to the applicant to make a fresh request for same. Our role in this case is to determine if the Board was justified in refusing part 10 of the request under section 15(1)(a). Having regard to the Board’s submissions, and in the absence of evidence to suggest otherwise, I am satisfied that it was.
Accordingly, I find that the Board was justified in refusing, under section 15(1)(a) of the FOI Act, access to any further relevant records in respect of parts 3, 6, 7 and 10 of the request.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
The requested records concern applications made to the Board in respect of medical negligence. The Board said part 14 was refused under section 37 of the FOI Act 2014 but the reason for that decision given to the applicant in the decision letter was not sufficiently clear. It said that, based on what was sought, the FOI decision should have clarified that it was refused under section 37(1) of the FOI Act. It said the personal information in medical negligence applications are provided to the Board by individual clients and not for dissemination to others.
It said the records/information sought (copies of all applications for medical negligence) and withheld constitute personal information on the basis that they are about identifiable individuals whose identity (and condition in medical negligence cases) would be known only to family/friends. It said that they constitute personal information held in confidence by the Board as the statutory body for legal aid provision in the Irish State and such information relates to the medical history of the individual. It said the medical claims may relate to financial or employment standing or difficulties experienced by individual identifiable claimants (e.g. inability to work as a result of medical negligence), as per section 2 (a), (b)(i), (ii), (iii), (x) and (xii) of the FOI Act. It said this meant the decision was taken to refuse the release of such personal data.
I am satisfied that all of the information sought at part 14 can properly be described as personal information and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
No argument has been made that any of the circumstances outlined above at subsections (a) to (e) are relevant in this case, nor do I consider any to apply. I find accordingly that section 37(2) does not apply to the remaining information.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the third parties to whom it relates. No argument has been made that the release of the information at issue in this case would benefit the third parties to whom the information relates. Therefore, I am satisfied that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The applicant has not made any specific public interest arguments in favour of the release of the information in part 14.
The Board said that section 37(5)(a) of the FOI Act is relevant. It said that, under section 37(5)(a), the number of medical negligence cases handled by the Board is indicated in the Annual Report, most recently 2022. It said the personal details of individuals who took medical negligence cases or any Board clients are never released, unless there is client consent to do so. The Board referenced the High Court's ruling in the Enet case, that there must be a fact-based reason to tip the balance in favour of disclosure and that this must be distinguished from a private interest. It said that, in the applicant’s email dated 16 April 2024, there is no fact-based public interest set down in the request for the Board to release the information requested.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
In my view, the information requested in part 14 (copies of all applications for medical negligence) is, indeed, third party personal information and as such, there must be a sufficiently specific, cogent and fact-based reason to find that the public interest in its release outweighs, on balance, the privacy rights of the third parties concerned. I must also regard the release of the information as being effectively, or at least potentially, to the world at large. Bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information in part 14 outweighs, on balance, the privacy rights of the relevant third parties and the sensitive nature of the information at issue. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case.
Accordingly, I find that section 37(5) does not serve to disapply section 37(1) of the FOI Act in respect of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Board’s decision. I find that it was justified in refusing access to information contained in parts 3, 6, 7 and 10 on the basis of section 15(1)(a) and part 14 on the basis of section 37(1) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator