Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-154426-L6V0X0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154426-L6V0X0
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to a vaccination the applicant received in 1973, on the grounds that the records sought could not be found
3 April 2025
The HSE received the applicant’s FOI request from the Department of Health and the Office of An Tánaiste on 10 and 12 September 2024 respectively. The applicant made a request seeking access to her medical records relating to a vaccination she received as a child in 1973, including a locum doctor’s report and any related notes she said the doctor submitted to the Eastern Health Board (EHB) or a named clinic following the applicant’s adverse reaction to the vaccine.
On 9 October 2024, the HSE refused the request under section 15(1)(a) of the FOI Act as it was unable to locate the records sought by the applicant. The HSE stated that it conducted searches under the applicant’s current surname and maiden name and said that no records were found. On 4 November 2024, the applicant sought an internal review of the HSE’s decision and the HSE affirmed its original decision on 29 November 2024. On 9 December 2024, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review, the Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined the searches it had conducted and its reasons for concluding that the relevant records could not be found. The Investigating Officer invited the applicant to make submissions on the matter, which she duly did.
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 HSE and the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the HSE was justified in refusing access to records sought by the applicant relating to her vaccination under section 15(1)(a) of the FOI Act on the ground that it could not locate the records sought by 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.
In its submissions to this Office, the HSE provided some context by stating that the EHB became the Eastern Regional Health Authority which subsequently became the HSE. It said that EHB records are now HSE records.
The HSE stated that a search for records was carried out in the Public Health Nursing Service in the named clinic. It said that no records were found as children’s records are retained only until the patient’s 25th birthday. The HSE attached a copy of its record retention policy to its submission for reference.
The HSE said that a search for records at the Vaccination Office was also carried out. It said that records at the Vaccination Office have been computerised since 1995. The HSE stated that vaccination records prior to that were paper based and have been archived with a managed archive company. The HSE stated that manual searches were carried out for relevant years on two occasions by two different people in the archive company. It said that searches were carried out using the applicant’s maiden and married surnames as well as her date of birth, but no records were found. It also stated that no other medical records regarding the applicant’s history of vaccinations were located. The HSE said it cannot confirm whether a report of a locum GP from an external organisation ever existed or was ever sent to the EHB.
In her submissions to this Office, the applicant stated that the records she is seeking may be missing or mislaid, or could still be held in three possible locations. She stated that her mother made a submission to the Vaccine Damage Steering Group (VDSG) in 2007 on her behalf. The applicant stated that her vaccine records mat be held in the VDSG file in the Department of Health’s Legal Department.
The applicant also suggested that the records she is seeking may be included with the Mother and Baby Homes Commission Investigation Report as she said that she was immunised as part of a vaccine trial in various Mother and Baby Homes and clinics. The applicant said that the locum doctor who treated her after her adverse reaction gave a report to the named clinic and the EHB at the time. She also asked if her mother could assist in a search of the managed archive company as she is a retired civil servant.
As part of her submissions, the applicant provided this Office with copies of correspondence from the EHB and the ERHA addressed to her mother in 1999 and 2001 respectively. The EHB correspondence referred to the release of a record of the applicant’s primary immunisation as an infant in 1973. The ERHA correspondence referred to the applicant’s ‘Immunisation Record Card’ and stated that no batch number was recorded for the injection given to the applicant in 1973. Additionally, the applicant provided this Office with a copy of an email sent to her mother on behalf of the VDSG acknowledging her submission referred to above, as well as a media advert from the time showing the HSE’s involvement with the VDSG.
The Investigating Officer put these submissions from the applicant to the HSE and asked if they pointed to any records the HSE may still hold which were not considered in its searches. The HSE responded by saying that it was unable to locate records in its searches due to the passage of time in this case. It stated that no other records relating to the applicant were found in the search for vaccination records. The HSE also said that, given the long period of time that has passed since the VDSG in 2007, it is unable to confirm if the applicant’s records were provided to the VDSG.
The HSE also said that it may be the case that the records referred to in the submissions provided by the applicant may have been removed for other queries. When the Investigating Officer asked the HSE to clarify what it meant by this, it said that the letters from the EHB and the ERHA show that the applicant’s mother did receive some records in relation to the queries raised by the applicant’s mother over the years. The HSE said that there is a chance that records of the applicant’s vaccinations may have been misfiled or lost after addressing the queries, but it is impossible to say with certainty.
My Analysis
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, nor do I consider it necessary or appropriate for the applicant or her mother to assist in further searches of the HSE’s record archives.
While I appreciate that the applicant is disappointed that the HSE cannot locate the records she is seeking, having regard to the information before this Office, and in the absence of evidence to the contrary, I am satisfied that the HSE has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why it is unable to locate any relevant records. In the circumstances, I find that the HSE was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Finally, in her application and submissions, the applicant suggested alternative bodies which may hold the records she is seeking. It is open to the applicant to make an FOI request to these other bodies if she believes they might hold relevant records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI 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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Richard Crowley
Investigator