Decision
Ms X and The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-161936-X0Q5B9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161936-X0Q5B9
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relevant to the applicant’s request following the release of records during the course of this review on the grounds that no further records exist within the scope of the request
26 February 2026
In a request dated 14 January 2025, the applicant sought access to all her medical notes and medical imagery on file from June 2019 to the date of her request as produced in a named G.P. medical centre and its sister surgery. In her request, the applicant stated that her brother is her advocate and carer and that he consented to his name being released to the applicant if it appeared in the applicant’s medical records. The applicant’s brother has been involved in the correspondence during the course of this review. Therefore the term “the applicant” in this review may also refer to communications received from the applicant’s brother.
In a decision dated 17 April 2025, the HSE decided to part-grant the applicant’s request. It identified 540 pages of records as falling within the scope of the applicant’s request. It provided these records to the applicant, refusing access to a small amount of information in the relevant records on the basis that it was third-party and joint personal information under sections 37(1) and 37(7) of the FOI Act.
On 31 July 2025, the applicant requested an internal review of the HSE’s decision. In her internal review request, the applicant stated that there were 92 pages of records missing from the records released to her. More specifically, the applicant said that amongst the records were pages which were numbered sequentially up to and including ‘page 20 of 111’ but that the page presumed to be numbered ‘1 of 111’ and the pages presumed to be numbered 21-111 were missing. The applicant provided certain identifying information in relation to the pages of records which she considered to be missing.
On 7 August 2025, the HSE’s internal reviewer affirmed the original decision. The HSE said that it received the file of 540 pages of records electronically from the G.P. surgery in eight separate parts due to the size of the file. The HSE said that the 540 pages were released to the applicant, with a small amount of redactions on the basis of section 37, and no pages were withheld. It said the applicant’s file included pages numbered 1-20, but the electronic file did not contain any pages numbered beyond 20. It further stated that the G.P.’s IT system counted 111 pages, but it only numbered the first 20. It said that only some pages were numbered and others, such as test results or letters, are scanned and counted, but are not labelled as numbered pages by the IT system.
On 29 August 2025, the applicant applied to this Office for a review of the HSE’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant at the outset of the review and the submissions from the HSE. I have also had regard to the records concerned. I have decided to conclude this review by way of a formal, binding decision.
On two occasions during the course of this review, the HSE informed this Office that a number of additional records had been found by the G.P. practice in question and release of the records to the applicant in full was to be arranged. The applicant informed our Office that the first additional release of records, comprising 17 pages of consultation notes dating from 4 August 2022 to January 2025, was sent by the G.P. medical centre as JPEG files. The applicant further informed this Office that, with respect to the second release of records, comprising 7 additional pages of consultation notes, there was an arrangement for the applicant to collect the hard copy records in person. The applicant said that the JPEG files were difficult to interpret and to check if the requested information was all present, and that collecting hard copy records was highly inconvenient.
Following engagement with this Office, the HSE agreed to release all 24 pages of additional records in full in hard copy to the applicant via registered post on 9 December 2025. The HSE also agreed to re-release the page numbered ‘page 1 of 111’ within the initial tranche of records which the applicant said was missing from the records released. Following this, the Investigating Officer contacted the applicant who indicated that she had no further submissions to make. I am therefore satisfied that that the applicant is in possession of the page numbered ‘page 1 of 111’ which was part of the initial tranche of records as well as the 24 pages of additional records released to her in hard copy on 9 December 2025 and I do not need to consider these further as part of my review.
Following the release of these additional records to the applicant, the HSE’s position is that no further records can be found within the scope of the applicant’s request. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
In addition, as set out above, the HSE refused access to a small amount of information in the relevant records on the basis that it comprises third party personal information and/or joint personal information within the meaning of sections 37(1) and 37(7) of the Act. The applicant, in both her request for an internal review or in her appeal to this Office, did not dispute the information which has been refused in the relevant records on the basis of section 37. In the circumstances I am satisfied that I can exclude such information form the scope of my review.
Accordingly, this review is solely concerned with whether the HSE has carried out all reasonable searches under section 15(1)(a) of the Act to locate further records within the scope of the applicant’s request.
In the course of her engagement with this Office, the applicant provided some contextual reasoning for seeking her medical records and for bringing her application for review. It is important to note that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The HSE provided this Office with the reasons for which it maintains that, following the most recent releases of records, it does not hold further records relevant to the applicant’s request. The Investigating Officer provided a summary of the HSE’s submissions to the applicant. While I do not propose to repeat the submissions from the HSE in full here, I confirm that I have had regard to them for the purposes of this review.
In submissions to this Office, the HSE said that, as the applicant’s request was for her medical records as held by her G.P., following receipt of the applicant’s request, the HSE contacted the G.P. practice in question and sought the relevant records. It said that the G.P. practice electronically provided eight files of records comprising 540 pages of records and the HSE said it released the records to the applicant in the exact format it received them from the relevant G.P.
The HSE said that there were no full pages redacted or withheld from release to the applicant. It said that it is usual that medical records received from a G.P. practice consist of both pages created by the G.P. on their system/software which are numbered, as well as pages which are scans of manual documents and/or emails that are uploaded on to their system and are not numbered. In addressing why the page numbering stopped at ‘page 20 of 111’ of the initial release of consultation notes, the HSE said that the consultation notes are numbered as they are printed. It further said that any additional pages on an individual’s file, i.e. scanned documents to the file, are included in the overall tally of pages of records, but these are not numbered in the same manner or sequence. The HSE also provided specific explanatory examples of how a situation could arise whereby the numbering of pages could be non-sequential and these examples were provided to the applicant.
In addition, as the applicant had mentioned the names of two surgeries in her original request, the Investigating Officer asked the HSE if records from both surgeries were accounted for. The HSE responded by saying that, as they are ‘sister surgeries’, both use a single record system for both practices, and so patient information is retained on one single server location. This means that both surgeries would have been accounted for in the search for records.
As noted above, the applicant was given a summary of the HSE’s submissions following the release of the additional records to her on 9 December 2025 and was provided with the opportunity to provide further submissions of her own in response. As noted above, after receiving hard copies of the additional records, the applicant made no further submissions to this Office.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist, or are known to have existed in the past, have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist or did exist.
As noted above, the HSE has provided details of the searches the respective G.P. service said it carried out for the records requested by the applicant and has explained why the numbering of certain pages of the records does not follow the expected sequence. Following the additional releases of records during this review, and based on the submissions from the HSE, I am satisfied that the HSE has now carried out all reasonable steps to search for and provide the records within the scope of the applicant’s request. Having regard to the information before this Office, and in the absence of further submissions from the applicant to contest the HSE’s position that there are no further records within the scope of her request, I find that the HSE is justified in its decision to refuse access to any further records relevant to the applicant’s request under section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. Following the additional releases of records to the applicant in the course of this review, I affirm the HSE’s decision to refuse the applicant’s request under section 15(1)(a) of the Act.
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.
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Mary Connery
Investigator