Decision
Ms. X & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-159140-R6W3T4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159140-R6W3T4
Published on
Whether the National Screening Service of the HSE was justified in refusing access to further records relating to the applicant under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found that come within the scope of the applicant’s request
04 September 2025
BreastCheck is part of the HSE’s National Screening Service (NSS). In a request dated 10 September 2024 addressed to the BreastCheck Unit at a particular location, the applicant sought access to all records relating to her dating from 1 January 2010 to 1 September 2024.
In a decision dated 8 October 2024, the HSE granted the applicant’s request. It stated that BreastCheck had released an encrypted CD-ROM of radiography imagery to the applicant from a previous Subject Access Request (SAR) on 2 July 2024, and so it did not include this in the FOI release. However, the HSE said that if the applicant needed another copy of the CD-ROM, it could provide this again.
On 2 November 2024, the applicant requested an internal review of the HSE’s decision. In her request, the applicant stated that no radiography and no radiography schedule was released to her. The applicant also noted she had received no correspondence or records relating to Cork University Hospital (CUH) Wilton Campus. The applicant requested full colour hardcopy prints of all radiography and digital copies of her radiography images in jpeg format on USB and on CD. She also requested the name of the BreastCheck FOI Officer.
On 25 November 2024, the HSE varied its original decision and released a CD with the applicant’s radiography images, which it said had already been released to her on 2 July 2024 as part of her SAR. The HSE said that it could not provide the radiography images in hardcopy format as the network does not provide for printing images and, even if it could, the printed images would not include the detail found in the original record. The HSE also said that it could not provide the images on a USB as security protocols advise against the insertion of USBs into a secure network. In regard to the applicant’s reference to CUH in her request for internal review, the HSE said that CUH is a separate body and that it does not have sufficient particulars to transfer the applicant’s request to CUH. The HSE provided the applicant with details to make a separate FOI request to CUH.
On 20 May 2025, the applicant applied to this Office for a review of the HSE’s decision. In her submissions, the applicant said that BreastCheck had failed to acknowledge correspondence from her and refused to answer her questions. She also said she did not receive a schedule of radiography. The applicant said she believes that additional X-rays
(other than standard mammography) were taken of her head, neck, and hands at the BreastCheck Unit on 6 March 2024.
During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions and invited the applicant to make further submissions if she wished to. The applicant requested an extension to the time for making her submissions which was agreed to by this Office. However, after the passing of the extended deadline to provide submissions, the applicant informed the Investigating Officer that she accepted that it was open to our Office to reach a decision without indefinitely awaiting her submissions.
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 correspondence outlined above and to the submissions made by both parties during this review. I have decided to conclude this review by way of a formal, binding decision.
The HSE’s position is that is has released all records to the applicant that are held by BreastCheck. The applicant believes further records ought to exist. Accordingly, this review is concerned solely with whether the National Screening Service (NSS) of the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records falling within the scope of the applicant’s request.
In her application to this Office the applicant complained that BreastCheck had failed to acknowledge correspondence from her and refused to answer her questions.
Firstly, while the FOI Act provides for a right of access to records held by FOI bodies, requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the 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 record containing the answer to the question asked or the information sought.
Furthermore, it is important to note that the role of this Office is not to determine what records should exist, to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s FOI request for records. As such, while I understand the applicant has been in communication with BreastCheck on a number of occasions, I cannot comment on its communications with the applicant.
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.
As noted above, the HSE provided this Office with details of the searches it undertook to locate relevant records and its reasons for concluding no further records exist, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
The HSE provided submissions from the National Screening Service (NSS) which is a part of the HSE responsible for several screening programmes, including BreastCheck. In its submissions, the HSE said that outside of the management of the applicant’s FOI request, there has been extensive engagement between the applicant and the NSS since March 2024. It said the applicant attended a specified BreastCheck Unit on 6 March 2024 and thereafter made contact by letter asking whether additional x-rays had been taken on that occasion. In its submissions, the NSS stated that BreastCheck uses specialised radiographical equipment that is designed purely to take x-ray images of breasts (mammography). This is a specialised discipline within radiography, undertaken by senior radiographers with advanced training in mammography. It stated that the equipment is unsuitable for capturing images of other parts of the body.
The NSS stated that BreastCheck does not undertake radiographical imaging for any purposes other than breast screening and associated treatment. BreastCheck radiographers operate according to a defined protocol (BC/RAD-003 Radiography: Performing Screening Mammograms) which specifies the standard procedure to be followed. The NSS said that this outlines that the radiographer is to capture medio-lateral oblique and cranio-caudal view images of each breast. It outlines that additional images may be captured where a person has large breasts, breast implants, or if the nipple is not in profile. The NSS stated that it is sometimes necessary to complete a technical repeat of imaging where it is apparent that the image quality is compromised from, for instance, muscle movement or where the whole breast is not included. These would be the only permitted and in-scope x-rays completed in a BreastCheck unit. The NSS noted that it is sometimes necessary to position a person in a way that they may need to stabilise themselves with their hands or to manipulate their body to capture the best image. This may give the impression that other body parts are being imaged, however, the NSS stated that the image is only ever of the breasts. The NSS said it should also be noted that the machines used by BreastCheck are only capable of taking images of breasts. It stated that the electricity requirement and radiation dose for an image of a body part like the head, neck or arm would be considerably higher than that for a breast, leading the machine to cut out. As such, the NSS stated that it is not technically possible for BreastCheck to have captured any images of other body parts.
The NSS stated that the applicant made a Data SAR (DSAR) on 4 June 2024 seeking access to all information held relating to her. It said that, after comprehensive searches, it released records including the encrypted CD-ROM with the complete radiography on file. The NSS stated that BreastCheck is responsible for part of the treatment pathway for breast cancers. When a client is diagnosed, the NSS said they are often transferred from BreastCheck into the care of the symptomatic services in various hospitals where their treatment continues. The NSS stated that, as a screening service, BreastCheck only retains such personal information as necessary to manage the pathway of care that is part of that screening service. As such, the NSS said there may well be other medical records for a client that sit within the control of other voluntary hospitals, clinics or services and not the NSS.
Further to this, the NSS said that it does not hold any records from CUH Wilton Campus. It said that CUH is not a host hospital for BreastCheck and there was no correspondence with CUH found on the applicant’s file. The Investigating Officer asked the NSS why the applicant’s request could not be transferred to CUH. It responded by saying that there was no reference to CUH in the applicant’s original FOI request and in the absence of any further particulars regarding what the applicant expected from CUH, or a clear request made pursuant to FOI for records from CUH, the NSS was not in a position to transfer the request.
The NSS provided search details that its Client Services carried out on foot of receiving the request for records. It said that initial searches confirmed that the applicant only had records relating to her participation in CervicalCheck and BreastCheck. The NSS said that Client Services made the requisite searches for CervicalCheck which returned 22 pages of in-scope records. BreastCheck completed their searches generating a further 254 pages of records covering both clinical and administrative records. It decided to release all 276 pages of records. The NSS said that many of the clinical records had already been provided in the recent DSAR, including mammography images.
The NSS stated that a search was conducted on the National Integrated Medical Imaging System (NIMIS) which contains medical imaging, including radiography, from various locations. The system is operated by the HSE. The NSS said the search did not yield any additional radiography relating to the applicant for head, neck or hands on or around the 6 March 2024. The NSS said that a search was carried out for any other radiography that could have been taken around 6 March 2024 at a different location, but this yielded no further records.
The NSS provided two reasons as to why its searches were confined to NSS-controlled systems and not elsewhere within the HSE. Firstly, in both the original request and internal review request, the letters were addressed to BreastCheck. Secondly, the NSS said that the nature of the engagement with the applicant outside of the DSAR and FOI processes focused specifically on whether BreastCheck undertook any other x-rays at the applicant’s screening appointment in the BreastCheck Unit on 6 March 2024. It said that there was no indication that the applicant sought records beyond the NSS.
The NSS said that, according to the HSE’s Record Retention Policy, mammography records are kept for 8 years after screening, and so no imaging would be scheduled for routine disposal in this case. The 2013 Record Retention Policy, now superseded by the 2024 Policy, provided for an even longer retention period for breast radiography. It said that no exceptional requests for disposal of the applicant’s images were processed. Therefore, the NSS said that no records within the scope of the request would have been deleted or disposed of.
The NSS said it was only able to provide the radiography images via CD-ROM. It said the images do not exist in print. On the radiography system, the NSS said they exist as high-quality diagnostic images and, even if they were to be transferred to an A4 printed format, the diagnostic quality of the images would be removed. It is the NSS’s position that, if this was to be done, it would effectively create a new record of an inferior quality, and one which exists for an entirely different purpose to the purpose for which the image was originally intended. In any event, the NSS said it is not possible within the radiography system to print these images – they exist only digitally so they were provided in that format. The reason for preferring CD-ROM over USB is that the NSS’s ICT security protocols discourage use of removable storage devices wherever possible. In terms of the applicant’s reference to a schedule of radiography records, the NSS stated that there is no specific schedule of radiography that exists as an independent record.
The NSS stated that the applicant’s request for the name of the FOI/GDPR Officer was not included in the scope of its internal review as this was not mentioned in her original request of 10 September 2024. The NSS concluded its submissions by stating that all the records it has found have been released to the applicant either via DSAR or FOI requests.
As noted above, the applicant did not provide any further submissions in response to the update she received from this Office.
It 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 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 should or might exist. As such, the question I must consider in this case is whether the HSE has taken all reasonable steps to locate the whereabouts of the records sought by the applicant in her original FOI request.
Having regard to the information before this Office, and in the absence of any evidence to suggest that further relevant searches might be warranted, I am satisfied that the HSE has taken all reasonable steps to ascertain the whereabouts of the records sought by the applicant. Accordingly, I find the HSE was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records coming within the scope of the applicant’s request.
Finally, in regard to the applicant’s comments about records relating to CUH, as the HSE suggested, it is open to the applicant to make a new FOI request directly to the Hospital if she wishes to do so.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision, under section 15(1)(a) of the FOI Act, to refuse further records falling within the scope of the applicant’s request on the ground that no further records exist or can be found.
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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Richard Crowley
Investigator