Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-144449-F3C9P4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144449-F3C9P4
Published on
Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records related to the applicant’s early life on the basis that no further records exist or can be found
9 May 2024
In a request dated 1 September 2023 the applicant sought access to records dating from 1945 relating to his early life. On 3 October 2023, the HSE released a record to the applicant titled “Records and Particulars Book of Maternity Home”. On 19 October 2023, the applicant requested an internal review of the HSE’s decision. He noted that the record he received from the HSE is incomplete and absent of any beneficial information and said he is seeking answers to the last three sections of the record which are blank, namely:
In a decision dated 20 November 2023, the HSE affirmed its decision without reference to any of the applicant’s comments about information that is missing from the record he received. The HSE said that “full access to all records held by [the named] Community Hospital had been granted. On 4 December 2023, the applicant applied to this Office for a review of the HSE’s decision.
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 further records related to his request exist or can be found. The Investigating Officer invited the applicant to make submissions on the matter. While the applicant replied, he did not make any substantive submissions in the matter.
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. 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 further records sought by the applicant on the basis that no such records exist or can 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. 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 his/her 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 I have outline above, the HSE provided this Office with details of its reasons for concluding that the further information sought by the applicant does not exist or cannot be found. The HSE said that the Home in question is now a residential unit for Older Persons. It said that prior to that it was a “County Home” and a “Mother and Baby Home”. The HSE said that the only records it has in relation to babies born at the home and their mothers are the birth register books which consists of one page with the mother’s name, address, date of birth and sex of the baby, which it has provided to the applicant. The HSE also said that it has on several occasions contacted Tusla for relevant records, but said that Tusla confirmed it does not have any records. The HSE said it cannot confirm what records retention practices were in place in the home from July 1945 until it closed. The HSE stated it does not know if the religious order involved just didn’t keep any records beyond the birth of babies, or if there were records that were moved elsewhere when the County Home closed and have since been destroyed. The HSE said that the records for mothers and babies are archived in its filing room. It said that as they date back to the 1930’s and are from a completely different service to the one that it is now providing at the location, it never had responsibility for the completion or destruction of those records, nor have the records been destroyed since the change of services.
The HSE said that the applicant wishes to know who took the baby from the home, but unfortunately this is not documented. It said that if the information was available, it would most certainly provide it, but unfortunately there is no further information available to it aside from the information already given.
As noted above, the Investigating Officer provided the applicant with details of the searches carried out by the HSE and its reasons for concluding that no further records exist. The applicant replied saying he would reveal other sensitive and personal information only in a formal hearing. The Investigating Officer contacted the applicant by email and explained that we do not hold formal hearings as part of our review process. The Investigating Officer once more invited the applicant to make submissions if he wished. To date, we have received no further response from the applicant.
On the matter of whether the HSE holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of 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 more records should or might exist, or rejects an FOI body’s explanation of why a record does not exist or cannot be found.
Having considered the information before this Office in this case and in the absence of evidence to suggest that further searches should have been undertaken, I am satisfied that the HSE has undertaken all reasonable steps to locate the records sought by the applicant. While I appreciate that the applicant will be very disappointed by my decision, I find that the HSE was justified in refusing access to further records relating his request, under section 15(1)(a) of the FOI Act, on the ground that no further 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 further 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.
Richard Crowley, investigator