Decision
Ms F and Health Service Excecutive
From Office of the Information Commissioner (OIC)
Case number: 140034
Published on
From Office of the Information Commissioner (OIC)
Case number: 140034
Published on
Whether the HSE was justified in its decision that the medical records sought by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act
3 July 2014
The applicant submitted an FOI request to the HSE on 3 September 2013 requesting her medical records relating to the following:
1. The birth of her son, 1971;
2. The birth of her daughter, 1973;
3. The birth of her second daughter, 1981;
4. Surgery, 1983;
5. Surgery, 2012.
The Department issued its decision in response to this request on 29 October 2013. It released part of the information sought but stated that it could not find records relating to the birth of the applicants first daughter and cited section 10(1)(a) of the Act as the basis for not responding to this part of the applicant’s request.
The applicant was not satisfied with this response and applied for an internal review of this decision on 19 November 2013. The HSE issued its internal review decision on 10 December 2013 in which it upheld its original decision. The applicant applied to this Office for a review of this decision on 30 January 2014.
During the course of this review the records sought by the applicant were found by the HSE and administratively released to the applicant. The applicant, having reviewed the records that were released, was not satisfied that all records were in fact released to her. The applicant outlined in her submission of 19 June 2014 to this Office that she was unhappy with the legibility of the records. The applicant also stated that one of her daughters was a twin whose brother died, of which no mention was made in any of the records released.
The Department stated that, following this further administrative release, it did not hold any further records relating to the applicant's request. I note that Mr. Christopher Campbell of this Office wrote to the applicant on 8 June 2014 advising that the HSE, having conducted searches, stated that no records relating to a deceased twin were found, and requesting any further information, such as a death certificate, that might assist the HSE in locating any further records. Mr. Campbell advised the applicant that if no further information was forthcoming he would recommend that this Office make a formal decision on the basis of the information currently available.
As no substantive contact from the applicant has been received it is my view that this review should now be brought to a close by the issue of a formal binding decision based on the information currently available.
In conducting this review I have had regard to: the decisions of the Department on this request and its communications with this Office; the communications of the applicant with this Department and this Office; the provisions of the FOI Act.
This review is concerned with the question of whether the HSE was justified in refusing access to the information requested on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable searches have been conducted.
I should explain at the outset that the FOI Act confers a general right of access to records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act does oblige public bodies to create records to satisfy or respond to the request.
Section 10(1)(a) of the FOI Act states:
A head to whom a request under section 7 is made may refuse to grant the request 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. 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).
Upon receipt of a letter of 18 February 2014 from this Office the HSE conducted a full review of the searches undertaken. It was discovered that the applicant’s maternity chart had been mistakenly retrieved by the FOI Department of another section of the HSE in processing another part of the applicant’s request (that is, the part relating to her surgeries). The HSE has stated that it appears that full notes for the applicant’s deliveries are held in one chart and that no notes are missing. The applicant’s maternity chart contains records for all three of her deliveries in 1971, 1974, and 1981. The HSE has stated that it has searched all areas where it might expect to find these records and without further information it has no further steps that it can take in order to locate the records. It contends that it has now released under FOI or administratively all records that could be found pertaining to the applicant’s request.
The position of the HSE is that the further records requested by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Taking into consideration the submissions of the HSE relating to the searches carried out for the missing records, I am satisfied that all reasonable steps have been taken to find the records and that they do not exist or cannot be found. Accordingly, I find that the HSE was justified in refusing access to the records sought 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.
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.
Sean Garvey
Senior Investigator