Decision
Mr M and St. Vincent’s Hospital
From Office of the Information Commissioner (OIC)
Case number: 130285
Published on
From Office of the Information Commissioner (OIC)
Case number: 130285
Published on
Whether the Hospital was justified in its decision to refuse access to the healthcare records of the applicant’s late grandmother under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
30 April 2014
On 15 November 2013, the applicant submitted a Freedom of Information request to the Hospital for access to medical records relating to his late grandmother [Anonymised name]. By way of letter dated 9 July 2013, the Hospital refused access to records under section 10(1)(a) of the FOI Act. This decision was upheld following an internal review, the outcome of which communicated to the applicant by way of letter dated 23 October 2013.
I note that Mr. Niall Mulligan of this Office advised the applicant that the decision of the Hospital was justified in his view. The applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Hospital’s decision on the matter and its communications with this Office and the applicant’s communications with this Office and the Hospital. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether the Hospital was justified in its decision to refuse access to the records sought pursuant to section 10(1)(a) of the FOI Act, on the basis that the records do not exist, are lost or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
The applicant’s original request was for access to records relating to his grandmother’s medical history, in particular records relating to the nature of the treatment received by her at the Hospital, and records showing for how long she was a patient there.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.
The evidence in "search" cases, such as this, generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
In submissions to this Office, the Hospital outlined in detail the steps which have been taken in pursuance of the applicant’s request. Manual searches were carried out by staff in the Hospital’s Healthcare Records Department across six categories in four different locations. These included the Hospital’s Mastercard Index System, Admission/Discharge Cards, Deceased Records, “Old Log Book” and “Old Data Sheets”, as well as a general search of the Healthcare Records Department. Each of these searches was conducted on two separate occasions: firstly, on dates between 20 June, 2013, and 3 July, 2013; and again on dates between 7 and 18 October, 2013. Furthermore, on foot of information received from a former member of the Hospital’s staff, some records were located in the Hospital’s Library in December 2013, and these were furnished to the applicant.
The Hospital was unable to confirm whether the records sought had been destroyed. I note, however, that the HSE’s Record Retention Policy, 2013, states that records of the type sought by the applicant, such as psychological reports, should be destroyed under confidential conditions 20 years after the last entry in the record or 8 years after the patient’s death if the patient died while in the care of the organisation.
The Hospital indicated that none of the records dated prior to 1958 were committed to microfiche or otherwise indexed, and that no written information is available regarding the practises relating to file management, storage, archiving and retrieval in the Hospital at the material time.
The position of the Hospital is that it cannot find any further records appropriate to the applicant's FOI request. Given the significant financial cost and the resources that would be required, I am of the view that, in the circumstances of this case, it would be not be reasonable to ask the Hospital to commit to conducting further searches. Having reviewed the steps taken to locate the records as well as the Hospital's record management policies, I am satisfied that it has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Hospital in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator