Whether the HSE was justified in refusing access to details of the longest and shortest timescales within which a named Hospital processed FOI requests on the ground that no such records exist

18 November 2020

Background

On 24 July 2019, the applicant (a firm of solicitors) submitted a request to Cork University Hospital (the Hospital) for information relating to the timescales within which it provides records that are requested under the FOI Act. Specifically, it sought details of the longest and shortest periods within which the Hospital had complied with a request for records during the past five years and the average period within which records are provided.

On 27 August 2019, the HSE refused the request under section 15(1)(c) on the ground that granting the request would cause a substantial and unreasonable interference with or disruption of the work of the Hospital. It said the Hospital does not have an electronic system in place to manage requests and responding to the request would require manual retrieval and logging of all FOI requests in the last five years.

On 10 September 2019, the applicant sought an internal review of that decision. It also indicated that it would be prepared to reduce the timescale downwards to a reasonably acceptable period.

On 10 October 2019, the HSE affirmed its decision to refuse the request under section 15(1)(c). The internal review decision did not refer to the offer to reduce the timescale downwards. On 17 October 2019, the applicant sought a review by this Office of the HSE’s decision.

During the course of the review, the HSE argued that no particular record containing the information sought exists and that in order to comply with the request it would have had to create a record. Accordingly, the HSE was invited to make a submission on the applicability of section 15(1)(a) which provides for the refusal of a request where the records sought do not exist or cannot be found.

In the course of a number of exchanges of correspondence with this Office, the HSE provided details of the basis on which it concluded that it holds no relevant records. This Office then provided the applicant with details of the HSE’s submission and of its reasons for finding that no records exist. The applicant was invited to make a submission both on the applicability of section 15(1)(a) and on the HSE’s submission regarding same, but no such submission has been received to date.

Therefore, I consider it appropriate to conclude this review by issuing a formal, binding decision on the matter. In conducting 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 of the Review

While the HSE initially refused the request in this case under section 15(1)(c), it subsequently argued that it does not hold the records sought and that section 15(1)(a) applies. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I deem it appropriate to consider the applicability of section 15(1)(a) to the request.

During the review, the applicant agreed to withdraw part of its request, namely that concerning the average period for providing records. Therefore, the scope of this review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to records containing details of the longest and shortest timescales within which the Hospital dealt with FOI requests on the ground that the records sought do not exist.

Preliminary Matters

Before I address the substantive issues arising in this case, it is important to 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.

However, it is worth noting that under section 17(4) of the FOI Act, where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its original decision, the HSE stated that the Hospital does not have an electronic system for managing FOI requests and responding to the request would require manual retrieval and logging of all FOI requests received for the period at issue. In its submissions to this Office, it said that upon receipt of a request, a hard copy folder is created and relevant dates, including decision date, are recorded on the front cover of the file.

The HSE said that all requests received in HSE South are logged and tracked by the Consumer Affairs Area Office (CAAO) in an Excel log. It explained that information in relation to time periods is not created or maintained and the CAAO does not collect or request information relating to the actual release date of records. It said no record exists that contains the specific information sought.

On the matter of whether it might be in a position to extract the information from electronically held records in accordance with section 17(4), it said the Hospital logs FOI requests onto an Excel spreadsheet alongside Data Protection, Administrative Access, Court Orders and State Claims Agency requests. It acknowledged that the log in question is held electronically but it said the spreadsheet does not create or record information in relation to time periods for processing FOI requests.

It said that the headings contained in the Excel sheet are as follows:

1. Request type (FOI/DP/Admin Access)

2. Reference number

3. Name & Address

4. Date received

5. Year

6. Medical Record Number

7. Comment

8. Date Due

9. Letter Sent Y/N

10. Date records released

The HSE explained that the log was created in 2003 and contains in excess of 14,000 entries. It argued that a significant number of steps would need to be taken in order to manipulate the data to create a record that would fulfil the applicant’s request. The HSE stated that this would include manually cross-checking the Excel spreadsheet against the hardcopy FOI files in order to correct any incomplete entries, in particular columns for dates, in order to properly fulfil the request. It stated that it would then have to apply formulae to calculate the timescales sought by the applicant, as such timescales are not recorded by the Hospital. It further explained that dates in the Excel sheet were not formatted in a uniform manner and that this would need to be checked and amended in advance of calculating timescales.

As outlined above, the applicant has sought details of the longest and shortest processing times of FOI requests within the last five years. Given that the Hospital does not log the processing time of requests on its hard copy files, I accept that it is not required, under the Act, to examine those files, extract the relevant data, calculate the processing times of each request, and identify the information sought. This would, in my view, require the creation of new records. However, the question remains as to whether it might be in a position to comply with the request having regard to the provisions of section 17(4).

The excel sheet maintained by the Hospital contains details of the date of receipt of requests and the date the records were released. One of the many basic functions of excel spreadsheets is the ability to return the number of days between dates (the processing time). In my view, the extraction of the processing times of all requests recorded on the Hospital’s excel spreadsheet would involve the use of pre-existing spreadsheet functionality that allows for the extraction of such information and is, in my view, a reasonable step the Hospital could have taken as envisaged by section 17(4).

If the HSE is to be satisfied that the extracted information is accurate, I accept its submission that it would take quite an amount of time in order to validate that information which would include manually cross-checking the Excel spreadsheet against the hardcopy FOI files in order to correct any incomplete entries, in particular columns for dates, in order to properly fulfil the request.

It is important to note, however the fact that an FOI boy may have concerns about the factual accuracy of information held in a record or information held electronically that can be extracted in accordance with section 17(4) is not, of itself, an appropriate ground for refusing a request. I must admit that I fail to see what value such information may be to the applicant in circumstances where it may be inaccurate. Nevertheless, I am satisfied that, in the particular circumstances of this case, the Hospital is in a position to extract from the spreadsheet details of the longest and shortest times recorded. It is open to the Hospital to provide contextual explanatory background information when providing the details of the data extracted from the spreadsheet.

In the circumstances, I find that the HSE was not justified in refusing the request under section 15(1)(a). For the sake of completeness, I also find that the extraction of the data sought in the manner outlined above would not provide a basis for the refusal of the request under section 15(1)(c), in light of my finding that extracting the information in the manner outlined would not require manual retrieval and logging of all FOI requests processed in the last five years.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE. I direct it to extract and release the relevant information from the information currently held on the Hospital’s excel spreadsheet.

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