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Mr D and Health Service Executive (FOI Act 2014)

Case Number: 160330

Whether the HSE was justified in refusing access to a record outlining a specific sick-leave/overtime policy at the applicant's place of work on the ground the record does not exist

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 June 2016, the applicant made a request to the HSE for records in which he referred to a statement he signed following a return to work meeting regarding eligibility for overtime when out sick. On 27 June 2016, the HSE decided to grant the request and released a copy of a "back to work interview form" which was used to record the details of an interview which took place in January 2014 following the applicant's return to work after a period of sick-leave. A handwritten comment on this form states that it was explained to the applicant that overtime duty for January, February, and March, was suspended as a result of his quite significant sick leave and the applicant's signature appears below this statement. On 2 July 2016, the applicant sought an internal review of the HSE's decision. In his letter he stated that he wanted written information concerning the suspension of overtime if out sick. On 29 July 2016, the HSE affirmed its original decision and stated that no further record relating to the applicant's request could be located.

On 9 August 2016, the applicant sought a review by this Office of the HSE's decision. In a subsequent telephone conversation with Ms McCormack of this Office, the applicant clarified that he believes there should be a document stating that overtime would be taken from employees who took a day's sick leave in a three month period. In essence, he was seeking access to a policy document that supports the decision taken at his return to work interview concerning the suspension of overtime.

During the course of this review, the HSE provided this Office with information regarding the policy referred to by the applicant and the searches conducted to locate further records relevant to the applicant's request. Ms Buckley of this Office contacted the applicant on 13 September 2016, and provided him with details of these searches. She also informed the applicant of her view that the HSE was justified in deciding that the record sought did not exist. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE.

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in refusing access to a record outlining a specific sick-leave/overtime policy in place at the applicant's place of work, on the ground that the record sought does not exist.

Analysis and Findings

Section 15(1)(a) provides that a request for access to records may be refused if the record concerned does not exist or cannot be found, after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.

In a submission to this Office, the HSE stated that the applicant was informed at a back to work meeting that due to his extensive sick leave record over the past number of years his eligibility for overtime for January, February, and March 2014 was being withdrawn. It stated that in an effort to resolve the significant sick leave in the applicant's place of work all staff that had sick leave were precluded from availing of overtime on return and that this was a local management decision, as opposed to a specific written policy. As such, it contended that no record of the type sought by the applicant exists.

Notwithstanding this, the HSE stated that the applicant's personnel file was manually searched by two different members of staff for any record which may have referred to the verbal policy and how it may have applied to the applicant. The HSE stated that the only relevant record was the applicant's return to work interview form which had already been released to him.

In correspondence with this Office, the applicant stated that he is seeking written confirmation of the policy concerning the withdrawal of overtime due to sick leave. The FOI Act does not require the creation of records which an applicant considers ought to exist. Rather, it provides for a right of access to records the HSE actually holds. He also stated that he wants a copy of the HSE's sick leave policy. However, this is outside the scope of the applicant's FOI request, which was limited to a record outlining a particular sick-leave/overtime policy in place at the applicant's place of work in 2014. It is open to the applicant to contact the HSE directly in relation to his request for a copy of the HSE's sick-leave policy.

The question I must consider in conducting this review is whether the HSE has taken all reasonable steps to locate the specific record sought by the applicant in his FOI request. Having regard to the statement by the HSE that the decision taken in relation to the applicant was a local management decision as opposed to a specific written policy, I find that the HSE was justified in its decision to refuse access on the ground that the record does not exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty