Decision
Ms. X and the Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-158777-B2Z7R7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158777-B2Z7R7
Published on
Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant’s Grand Aunt on the basis that the records cannot be found or do not exist
11 September 2025
On 16 December 2024, the applicant made a request to the HSE for records about her Grand Aunt who was a long-term patient at a named mental health service hospital. The applicant said she is looking for general details about her Grand Aunt and her time in the hospital. She said her Grand Aunt worked in the office of the hospital during her time there. On 28 January 2025, the HSE refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records do not exist or cannot be found.
On 16 February 2025, the applicant applied for an internal review of the HSE’s decision. The applicant included a list of details which she stated she had been able to gather so far regarding her Grand Aunt’s life and asked the HSE to reconsider its original decision. On 12 March 2025, the HSE affirmed its original decision. The HSE said it had conducted a second round of extensive searches which took into consideration the additional details about the Grand Aunt provided by the applicant. The HSE said that old records within the timeframe specified in the applicant’s request (circa 1940 to mid-1990’s) were not retained in the same way that records are now. On 28 April 2025, the applicant applied to this Office for a review of the HSE’s decision. The applicant said she is surprised there are no records of her Grand Aunt being in the care of the Mental Health Services, including being in their employment.
During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, but no response has been received to date.
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 the HSE during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant’s Grand Aunt on the basis that the records sought do not exist or cannot be found.
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. My 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 began by providing an overview of its records management system. It stated that the HSE service relevant to this request maintains an archive of records for past and current service users. The HSE said that records are managed in accordance with the Health Service Executive Standards and Recommended Practices for Healthcare Records Management 2011 and the National Records Retention Policy 2024. It said these policies govern the legal, professional, and organisational responsibilities related to records retention. Furthermore, the HSE said that the records are securely stored on site in a controlled-access environment to maintain integrity and confidentiality.
The HSE said that the filing system used by the relevant mental health service for archived records is organised by type of service accessed, i.e. inpatient services, outpatient services, long-stay residential care. The HSE stated that records are organised based on the location where the service user received care. It also stated that there is a dedicated section for deceased service users to facilitate compliance with its HSE Record Retention Policy. The HSE said that records are stored in numbered, secure boxes placed on racks across a number of floors to facilitate easy identification and retrieval of records when needed.
The HSE stated that it carried out comprehensive searches for records relating to both service users and employees, and it did not locate any records relating to the applicant’s Grand Aunt. It said that an extensive search of its Medical Records Department in the relevant HSE service was carried out. It stated this included detailed discussions with the Medical Records Department staff. Additionally, the HSE stated that it conducted electronic searches for records falling within the scope of the applicant’s request by utilising its Medical Records Department’s Database Register, which it said included the following search parameters: the applicant’s Grand Aunt’s date of birth, surname, first name, and address. The HSE stated that a physical search of its archive was also conducted by HSE staff for records relating to patients, employees, and deceased service users. The HSE stated that following the searches outlined above, as well as all consultations carried out with relevant staff members, no relevant records were located.
The HSE said that records were destroyed in accordance with the HSE National Records retention Policy, which prescribes destruction of records 20 years after the date of last contact between the patient and any healthcare professional employed by the mental health provider, or 8 years after the death of the patient if sooner. In response to further queries by the Investigating Officer about the destruction of records, the HSE said that a box containing the records of the applicant’s Grand Aunt and a number of other service users was transferred for archive from the initial site location in November 2015. The HSE said the contents of this box were destroyed in January 2024 in line with its records retention policy.
In summary, the HSE said that after carrying out detailed electronic and physical searches, no records can be found relating to the applicant’s Grand Aunt.
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. 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. 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.
Having regard to,
• the HSE’s description of the searches it said it has undertaken,
• its statement that records of the applicant’s Grand Aunt were destroyed in line with its records management and retention practices, and
• 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 locate the records sought by the applicant.
In the circumstances, while I appreciated this will be disappointing for the applicant, I find that the HSE was justified in refusing access to records relating her Grand Aunt, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to the records sought by the applicant 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