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Mr X and the Health Service Executive (FOI Act 2014)

Case Number: 160370

Whether HSE was justified in its "decision" on a series of questions on the costs of employing certain paramedics and appointments within the National Ambulance Service

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


Background

The applicant's FOI request to the HSE of 29 January 2016 did not seek access to records. Instead, it asked 17 detailed questions about particular paramedics and appointments within the National Ambulance Service. On 16 March 2016, the HSE issued what purported to be a decision on the request, which answered the questions asked. On 18 April 2016, the applicant sought an internal review of certain aspects of the decision, to which the HSE replied on 19 May 2016. Again, the purported internal review decision responded to questions asked in the internal review application.

On 2 September 2016, the applicant sought a review by this Office of the HSE's decision on questions 8 and 9 of his request.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the HSE and the applicant; and to the provisions of the FOI Act. In particular, this Office told the applicant that this application for review could be decided on the lines set out below. He was invited to comment, but has not done so.

Scope of the Review


The scope of this review is confined to whether or not the HSE has justified any decision on the applicant's request that was made by it in accordance with the FOI Act.

Findings


Section 7 of the FOI Act provides that "every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body, and the right so conferred is referred to in this Act as the right of access." In turn, section 12 requires persons requesting records under the Act to do so in writing and to provide sufficient details to enable those records to be identified by the taking of reasonable steps.

Accordingly, in spite of its name, the FOI Act does not generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a relevant record which contains the answer to the question asked.

The HSE says that it did not treat the questions in the applicant's request as seeking records that would supply the answers sought. Rather, it responded to the questions in an effort to be helpful. It confirms that it did not determine if it holds relevant records that would contain answers to the questions asked. Neither has it made any decision under the FOI Act as to whether any such records that might exist should be released.

Accordingly, there is no valid decision, on specific records, made under the FOI Act that is capable of review in this case. In the circumstances, the only option open to me is to annul the HSE's decision on parts 8 and 9 of the FOI request (those being the only elements of the request about which the applicant appealed to this Office) and to remit the matter to it for fresh consideration. I find accordingly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision on parts 8 and 9 of the applicants FOI request. I remit those particular elements of the applicant's FOI request of 29 January 2016 to the HSE for fresh consideration in accordance with the requirements of the FOI Act.

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.

 


Elizabeth Dolan
Senior Investigator