Whether the HSE was justified in its decision to refuse the applicant’s request for access to further information relating to ambulance services and procurement across all hospitals within its remit under sections 15(1)(b) and 15(1)(c) of the FOI Act

20 August 2019

Background

On 14 February 2019, the applicant submitted a broad 14-part request to the HSE relating to ambulance services and procurement across all hospitals within its remit. The request was in the form of questions, requests for information, and requests for a broad range of records.

On 14 March 2019, the HSE issued a decision in which it refused the applicant’s request under section 36 of the FOI Act, which is concerned with the protection of commercially sensitive information. On the same day, the applicant sought an internal review of that decision,

In its internal review decision of 8 April 2019, the HSE granted access to information relating to part three of his request (but not containing the specific information sought) on the basis that the information was previously provided on foot of an FOI request and was considered to be in the public domain. It refused the remainder of the request under section 15(1)(b), on the ground that the applicant had not provided sufficient details to enable the records sought to be identified by the taking of reasonable steps, and 15(1)(c), on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work.

On 15 April 2019, the applicant sought a review by this Office 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 between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope

This review is concerned solely with whether the HSE was justified in its decision to refuse the applicant’s request for information and records relating to ambulance services and procurement across all hospitals within its remit under sections 15(1)(b) and 15(1)(c) of the FOI Act.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought.

Section 15(1)(c) allows an FOI body to refuse to grant a request if it 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 the records concerned as to cause a substantial and unreasonable interference with, or disruption of, its work, including disruption of work in a particular functional area.

It is important to note, however, that sections 15(1)(b) and 15(1)(c) are subject to section 15(4) of the FOI Act. Section 15(4) provides that a body cannot refuse a request under section 15(1)(b) or section 15(1)(c) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under sections 15(1)(b) or 15(1)(c).

In its submission to this office, the HSE confirmed that it did not offer assistance to the applicant to amend his request in this instance. It is therefore clear that the HSE failed to comply with the provisions of section 15(4).

In the circumstances, as the HSE did not provide assistance or offer assistance to the applicant in accordance with section 15(4), I find that it was not justified in its decision to refuse the request under section 15(1)(b) or section 15(1)(c).

Accordingly, I deem it appropriate to annul the decision of the HSE and to direct it to make a fresh, first instance, decision in respect of the applicant’s request, 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 he is not satisfied with the HSE’s new decision. In making its decision, should the HSE wish to continue to rely on sections 15(1)(b) and/or 15(1)(c) it must have regard to its obligations under section 15(4).

For the benefit of the parties, I would like to make the following additional comments.

Firstly, the applicant should note that while the purpose of the 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 from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

It is worth noting that under section 12(1)(b), an FOI request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Secondly, the applicant may also care to note that section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. While I make no finding on the matter, the request appears, on its face, to be both detailed and broad. For example, the applicant sought access to information in respect of all HSE run hospitals and in some cases sought “any and all correspondence” relating to specific matters. A request which seeks access to all records relating to a matter on which there is a substantial volume of records held will invariably run the risk of being regarded as voluminous.

Finally, while the 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 sections 15(1)(b) and 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 might add that while there is an onus on FOI bodies to assist, or 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. Nevertheless, as outlined above, it is also noteworthy that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. In such circumstances, the difficulty with requesters making broad or non-specific requests, such as a request for any and all records on a particular matter, becomes apparent.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case on the ground that it failed to offer assistance to the applicant under section 15(4) of the FOI Act. I direct the HSE to conduct a new decision-making process on the applicant’s request.

Right of Appeal

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