Decision
Mr X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: 140105
Published on
From Office of the Information Commissioner (OIC)
Case number: 140105
Published on
Whether the Department was justified in its decision to refuse access to medical records relating to the applicant under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
18 August 2014
The applicant made a request to the Department on 30 January 2014 for access to records which relate to the information the medical assessor has of her medical conditions to decide that she did not satisfy the conditions to be a carer for her sister. On 28 February 2014, the Department acknowledged the request, which was described as a request for copies of medical reports for carers allowance in respect of the applicant's sister. The applicant wrote to the Department on 10 March 2014 confirming that she did not seek access to her sister's medical records but instead, was seeking access to records the Department holds on her medical conditions.
Nevertheless, the Department issued a decision on 11 March 2014 refusing access to a medical report dated 16 February 2013 on the basis of section 28(1) of the FOI Act, stating that the medical papers could only be released with the written consent of the persons to whom they refer. The applicant sought an internal review of this decision, once again confirming that she was seeking access to medical records the medical assessor has on her medical conditions to decide that she did not satisfy the conditions to be a carer for her sister. In its internal review decision dated 14 April 2014, the Council stated that there was no evidence on the file indicating that the applicant was unfit to be her sister's carer and as such it was refusing the request on the basis of section 10(1)(a) of the FOI Act on the basis that the records do not exist. The Department explained that the decision which issued in respect of the application for Carer's Allowance provided two reasons why she did not qualify for an allowance, namely that the Department's Medical Assessor considered that the person being cared for is not so invalided or disabled as to require full time care and attention and that the deciding officer found the applicant was not providing full time care and attention as 3 hours per day is not considered full time care. The applicant was not satisfied with the internal review decision and applied to this Office for a review of the decision of the Department on 28 April 2014.
I note that Mr David Logan of this Office informed the applicant on 29 July 2014 of his preliminary view that the decision of the Department was justified. The applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Department, and to the provisions of the FOI Act.
This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to any records which relate to the information the medical assessor has of her medical conditions to decide that she did not satisfy the conditions to be a carer for her sister on the ground that such records cannot be found or do not exist. This Office has no role in examining the administrative actions of the Department in its processing of the application for a carer's allowance.
In its decision, the Department relied on section 10(1)(a) of the FOI Act to refuse access to the requested records. Section 10(1)(a) of the FOI Act provides that a request for access to a record 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.
The Commissioner's role in cases such as this is to review the decision of the public 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/her decision. The evidence in "search" cases consists of the steps actually taken to search for 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 records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).
In its submission to this Office the Department stated that it carried out searches in all possible files for records relating to the applicant's request for medical records relating to her fitness to be her sister's carer. Searches were carried out in the Medical Review and Assessment Section of both electronic and paper files relating to the applicant. Searches were also carried out for related files in the scheme files for Carers Allowance and Disability Allowance Sections. In addition searches were carried out in the Department's SDM computer system. No medical records relating to the applicant's original request were located during the course of any of these searches.
It seems to me, having regard to the information provided by the Department as to the reasons why the application for a carer's allowance was refused, that records of the type sought by the applicant in this case are unlikely to exist. Accordingly, having reviewed the steps taken to locate the records, I am satisfied that the Department has taken all reasonable steps to locate the records sought and I find that the Department was justified in deciding to refuse the request on the basis of section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.
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 eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator