Decision
Ms K and Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 140003
Published on
From Office of the Information Commissioner (OIC)
Case number: 140003
Published on
In a request dated 3 September 2013, the applicant sought access under the FOI Act to medical records relating to her late mother. On 11 September 2013 the HSE refused access to the records under section 10(1)(a) of the FOI Act. It upheld this decision following internal review on 22 November 2013. By letter dated 3 January 2014, the applicant applied to this Office for a review of this decision.
In conducting this review I have had regard to the HSE's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the HSE; and the provisions of the FOI Act.
I note that Ms Sandra Murdiff, Investigating Officer in this Office spoke to the applicant on 9 April 2014 and advised her that, in her view, the decision of the HSE was justified. I note that Ms Murdiff outlined the precise details of the searches undertaken by the HSE in an effort to locate the records at issue and while I do not propose to repeat those details, they are relevant for the purposes of the decision. The applicant did not offer any further submission to this Office on foot of Ms Murdiff's view and requested a formal binding decision.
This review is concerned solely with the question of whether the HSE was justified in its decision to refuse the applicant's request for access to her late mother's medical records under the FOI Act.
The original request was for access to medical records relating to the applicant's late mother, specifically in relation to the birth and death of twin boys who died soon after birth, most likely in 1957. The HSE refused access to these records on the basis of section 10(1)(a) of the FOI Act, which provides that a public body may refuse access if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".
In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. 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.
In submissions made to this Office, the HSE provided details of its healthcare records management policy, practice and procedures. In this case the records in question were originally held by Nenagh Hospital ("the Hospital"). The HSE informed the Office that these records were the subject of various culls over the years. It gave details of steps undertaken to locate the requested records; and stated that records management procedures were not in place in the Hospital until 2007 when the HSE Standards and Recommended Practices for Healthcare Records Management were introduced. The records in question most likely date from 1957, over 50 years ago, and as such would have been in line for destruction in 1982 as per Policy for Health Boards on Record Retention Periods (1999). However, the HSE has no evidence that the records were actually destroyed.
The position of the HSE is that the records in relation to the applicant's FOI request cannot be found or no longer exist. Having reviewed the steps taken to locate the records as well as the Hospital's record management policies, I am satisfied that it has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
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 HSE 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.
Sean Garvey
Senior Investigator