In relation to the stenography records that were found in the Case Officer's email account in the course of this review, while it is clearly unsatisfactory that they only came to light at this late stage, I accept the HSE's explanation of why this was the case, and that they appear to have been sent to the Case Officer in error. I do not consider that this is indicative of the likelihood of other relevant records also being held in this email account, and I accept that, at this point, reasonable searches of the Case Officer's records have been conducted. In respect of these three records found (the two draft transcripts and an email with the password), it seems that the only reasonable option available to me is to direct the HSE to make a first instance decision on these records, 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 she is not satisfied with the HSE's decision. I appreciate and regret that this will further prolong the process. However, for this Office to make a determination on these records at this point, without an original decision and internal review decision, would be contrary to fair procedures and what is required by the FOI Act. It is most regrettable that it is only at this stage of an already long process that the applicant will receive a formal decision from the HSE on the substantive question of whether or not it considers the stenography records that it has found to be exempt or releasable under FOI, rather than an administrative refusal on the grounds that the records cannot be found.
