Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-142753-W0F5K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142753-W0F5K5
Published on
Whether the HSE was justified in refusing access to further information across the relevant records on the basis that no further information exists
27 March 2024
In a request dated 17 August 2023, the applicant sought access to the following information from St Luke’s Hospital in Kilkenny:
In a decision dated 7 September 2023, the HSE granted the applicant’s request and within the decision, provided a table which the HSE had created for the purposes of the request. The table contained results of four Covid tests taken by the Hospital of the applicant’s late father and the corresponding CT value on the following dates: 9/12/2022, 18/12/2022, 28/12/2022 and 6/01/2023. On 8 September 2023, the applicant sought an internal review of the HSE’s decision, in her request she outlined that she was not satisfied with the typed list of results which had been provided by the HSE, she clarified that she was seeking full copies of the actual records containing the test results set out above. On 28 September 2023, the HSE issued its internal review decision, in the decision the HSE upheld its previous position, it stated that in their decision, St Luke’s Hospital granted full access to the records concerned and that no exemptions had been applied to the records. It also noted that the applicant had not received the records when the original decision issued and that this was an oversight on the part of the Hospital. It stated that the Hospital subsequently sent copies of the actual records to the applicant on 18 September 2023, with an apology. The hospital provided a PDF with all relevant PCR amplification results, screenshots from the laboratory system of the four CT values taken and created a new table which provided all of this information together. It stated that it considered on that basis, that all relevant records had been released in full.
On 29 September 2023, the applicant applied to this Office for a review of the HSE’s decision. Alongside her application, she provided a letter of submission, the points raised by the applicant therein, will be explored later in the decision.
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 relevant parties who made submissions, the applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In the submissions provided by the applicant she has queried the following matters:
The applicant has pointed out what she believes to be inaccuracies on her late father’s medical records, she has queried whether certain information may have been altered. For the purposes of this review, I am unable to consider whether or not information in the records is inaccurate or misleading, however, it is open to the applicant as her father’s next of kin, to apply to the HSE under section 9(6) of the FOI Act 2014 for an amendment of records, if she so wishes. While I appreciate that the applicant has concerns over whether or not information in the records may have been purposefully altered to withhold information, I am not in a position to make a determination on such a matter. For the purposes of this review, I can only consider whether the information she has sought has been provided in full by the HSE.
Therefore, this review is concerned with whether the HSE was justified in refusing under section 15(1)(a) of the FOI Act, further information or test results on the basis that no further records are held by the HSE.
During the course of this review, the applicant has raised a number of concerns including the relevant Hospital’s capacity to provide safe patient care and the importance of public hospitals being scrutinised in order to raise the standards of such care. She also expressed dissatisfaction concerning the internal reviewer’s adjudication of her requests, specifically relating to the dual role of independent reviewer and the HSE’s Group Communication Manager. As stated to the applicant, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, including the running of hospitals, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
For the benefit of the applicant, I also wish to explain that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by these bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records, requests for information are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
Section 15(1)(a)
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.
It is important to note that the Act does not require FOI bodies to create records if none exist apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Section 17(4) provides that where a request relates to data contained in one or more record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. Where the reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of the receipt of that request. Section 17(4) defines reasonable steps as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body.
If a body does not hold a record containing the information sought and cannot search for and manually extract the electronically held records by taking reasonable steps, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist.
Submissions from the Applicant
During the course of the review, the applicant provided two sets of submissions. In her original submissions she argued that she had requested to be provided with the full records containing her late father’s test results and not a typed list. She pointed out that in the table which had been provided, the decision maker had failed to provide the CT count for the tests which were taken on 9 December 2022. The applicant expressed concerns that the information on the word document could potentially have been altered, and that she wanted the actual records provided over the screenshots amalgamated into one document. She argued that it was not necessary for the Hospital to provide screenshots from within the laboratory IT system.
The applicant also stated that she was concerned that the results dated 28 December 2022 contained more data than that of the other test results. She said it appears one of the screenshots has been manipulated, she argues that in the screenshot provided by the Hospital it states that a swab was taken at 14.15 on 18 December 2022, however she argues that in her late father’s medical records, it states that in notes taken on 18 December 2022, the swab was recorded at 6pm. The applicant also expressed concern that no PCR amplification had been taken on 28 December 2022, and that the PCR amplification result for same which the Hospital has provided, had been falsely created.
During the course of the review, additional clarity was sought from the applicant on whether she considered that additional records existed between the dates of 9 December 2022 and 5 January 2023, which had not been scheduled, and to clarify why she believed same. The applicant was also asked to clarify why she believed that the test results had been altered in some way. The applicant failed to provide a response.
Submissions from the HSE
The HSE have stated that all records the subject of this review have been released in full to the applicant. It states that the Hospital released in full, the reports generated using the Lab Web Enquiry that are copies of the laboratories final reports which are available to the clinician requesting the test for review. It states that the CT results are not included in these reports, and that they are only available through the laboratory system itself. It states that in order to provide the applicant with a record containing the CT count, the laboratory printed out screen shots from within the laboratory system, and released the screenshots in full. The HSE argued that while there is no requirement to create new records in order to respond to an FOI request, the laboratory provided a table summarising the information sought outlining the date of the test, the lab number for each specimen, the result, the method and the CT count. It states that this was done in an effort to summarise to the applicant, the information she sought from within the various records while also providing a full copy of the actual records that exist containing the information sought. It further states, that the newly created document, that did not exist at the time the request was made, has also been released in full.
It states that with regard to the laboratory test results from 28 December 2022 containing more data than the other results, the laboratory have confirmed that the test performed on 28 December 2022 was done by using a combined Gene Xpert cartridge. The laboratory had switched over to this combined 4 test cartridge just before Christmas 2022, it outlined that the new cartridge tests for 4 respiratory viruses at the same time, which include SARS Covid, Flu A, Flu B and RSV. It states that the policy at the time was to screen all nasal swabs using this cartridge on admissions due to the seasonal nature of respiratory viruses, it states that this helps the clinician distinguish between Flu, Covid and RSV. It states that once the flu season is over, the laboratory switch back to only screening for Covid.
In relation to the applicant’s concerns around the screenshots being placed in a word document, the HSE has advised that the four screen shots were not individual records in their own right, it states that this information on the CT count is held within the electronic lab system and had to be extracted by way of screen shot as there is no other way to do it.
My Analysis
The question I must consider in this review is whether all relevant records which exist for the purpose of this request have been scheduled and provided to the applicant. The applicant has not advanced arguments that records have been withheld, but rather, as stated above she seems to be of the view that the records in question which have been provided may have been altered in some way. In particular, she has queried the provision of screenshots from the Lab System and has requested that the full individual records be provided to her. She has also requested clarity on why a table summarising the results were provided over the relevant records requested.
It is worth mentioning that as part of this review, the HSE provided two different types of test results to the applicant. It provided PDFs of the PCR amplification results from a software called the APEX web inquiry, these documents did not contain the CT counts requested by the applicant, so in addition, as stated above the Hospital provided screenshots from within the laboratory system which also included the CT counts for each of the dates requested.
It appears to me that section 17(4) is relevant to the consideration of this matter. The HSE have advised that there were no individual records which existed of the test results which also included a CT count, but that they were contained on a database. Section 17(4) provides that where a request relates to data which is contained within a number of electronically held records, the FOI body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Having reviewed the records in question, and bearing in mind the concerns of the applicant, it does not seem that there is any evidence that there is information missing from the records, included in each record is the PCR amplification and CT count sought by the applicant for the dates in question.
I would also note that the role of the Office in such a case is to determine whether reasonable steps have been taken by the public body to provide the applicant with the information sought. It seems to me that in the circumstances of this case, the HSE has gone beyond the requirements of the Act, by extracting all of the information into a new table which was provided to the applicant, and by taking screenshots of the information held on this lab system and providing it in a new record to the applicant. The HSE is not required to manually comb records and create new records for the purposes of satisfying a request. The HSE have also been clear that the screen shots from the system were not individual records in their own right but were held on an electronic lab system and had to be extracted by way of screenshot as there was no other way to do it.
I would also note that the applicant has not advanced any arguments that further records containing PCR results, or CT counts are missing, but rather has focused on the manner in which the records have been provided and the accuracy of the information in them.
With respect to the applicant’s concerns over altering of records, and noting her position in relation to the various concern she has raised regarding same, as stated above, it is not open to me as part of this review to make a determination on the veracity or accuracy of the record. If in the applicant’s view, the information in the records relating to her father is inaccurate it is open to the applicant, as her father’s next of kin, to request an amendment of those records under section 9(6) of the FOI Act. I say this notwithstanding the fact that the HSE have actually provided explanations as to the additional information within the lab results of 28 December 2022. I sought additional clarity from the applicant on this position but did not receive any further submissions on the matter, in the circumstances I am satisfied that there is nothing further for me to adjudicate on with respect to this matter.
Having regard to the foregoing, it seems to me that the HSE has provided all relevant information in relation to the applicant’s request. I find therefore that section 15(1)(a) is applicable and that no further records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing access to further information under section 15(1)(a) on the basis that no further information exists.
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.
Rachael Lord, Investigator