Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-149263-K3X3G6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149263-K3X3G6
Published on
Whether the HSE was justified, under sections 15(1)(a) and 37(1) of the FOI Act, in refusing access to further medical records relating to the applicant on the ground that no further relevant records exist or can be found and in redacting the personal information of other individuals.
1 August 2024
On 5 March 2024, the applicant made an FOI request for all his medical records from Midland Regional Hospital Portlaoise (the Hospital) to be sent to his GP. On 29 April 2024, the applicant requested an internal review as the HSE had failed to issue a decision on his request within the time prescribed in the FOI Act.
I understand the HSE initially processed the applicant’s request as a Subject Access Request (SAR) and issued a SAR decision to the applicant on 30 April 2024. On 21 May 2024, the HSE subsequently issued its internal review decision granting access to the applicant’s medical records. The HSE redacted a small amount of personal information contained on page 36 of the records under section 37(1) of the FOI Act.
On 23 May 2024, the applicant applied to this Office for a review of HSE’s decision. The applicant contends that the records provided were incomplete, saying he had attended Portlaoise Hospital A&E on two occasions, but there was only a record of one visit released. The applicant also asked for a full independent investigation into the manner in which the HSE processed of his FOI request.
During the course of this review, the Investigating Officer provided the applicant with details of the submissions we received from the HSE and offered him an opportunity to make further submissions. In response, the applicant reiterated his complaint about the mishandling of his request by the HSE.
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 both parties. I have also had regard to the redactions made by the HSE to page 36 of the records. I have decided to conclude this review by way of a formal, binding decision.
In his submissions to this Office, the applicant contends there is missing information from the records released to him/his GP, and in particular refers to records of his admissions through the Emergency Department of the Hospital. Accordingly, this review is concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any additional relevant records other than those released after all reasonable steps to ascertain their whereabouts have been taken.
This review is also concerned with whether the HSE was justified, under section 37 of the FOI Act, in refusing access to the small amount of information it redacted in page 36 of the records.
It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
As noted above, the applicant requested a full investigation into the handling of his FOI request and the delay in the release of records. It is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how the request was handled by the HSE. Such an investigation, were it to take place, could only be initiated by this Office under section 44 of the FOI Act. Amongst other things, section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act. A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. While I acknowledge the applicant is unhappy with the handling of his request by the HSE, I am satisfied that an investigation under section 44 is not warranted solely on the basis of the manner in which the HSE processed his request in this case. I wish to take this opportunity to remind the HSE of its obligations under the FOI Act.
The applicant stated that he attended the Hospital on at least two occasions between June 2022 and January 2024. He said that the HSE’s decision referred to only one admission to the Hospital. While the HSE’s position it that all relevant records have been released to the applicant, subject to the minor redactions referred to above, the applicant believes further records ought to exist.
Section 15(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 such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where the records that an applicant believes ought to exist have not been located.
As noted above, the HSE provided this Office with details of the searches it said it undertook in order to locate relevant records and its reasons for concluding no further records exist or can be found, details of which were provided to the applicant. While I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the HSE said that the applicant did attend the Hospital on two occasions in 2022. However, it said he was only admitted as a patient to the Hospital on one of these occasions. The HSE explained that records of visits to A&E which result in admission and visits which do not result in admission are recorded separately. The HSE said the applicant’s first visit was recorded as an admission record and his second visit was recorded as an A&E record. The HSE stated that the applicant’s GP had been provided with records of both visits as per the applicant’s original request.
The HSE also provided details of the searches undertaken to locate the records sought by the applicant. According to the HSE’s submission, none of the applicant’s records were misfiled nor misplaced and all records were stored in the correct places. The requested records do not fall within the timeline for destruction under the HSE’s Record Retention Policy. The HSE submitted that all records are in existence and the only information not released to the applicant’s GP were redactions of third-party personal information.
As noted above, the applicant was provided with details of the HSE’s submissions and was invited to make further submissions to this Office in response. While the applicant made general comments about the processing of his request, he did not dispute the detail provided to him or the HSE’s position that all relevant records had been located and provided to his GP.
Having had regard to the HSE’s submissions, and in the absence of evidence to suggest that additional searches might be warranted, 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 no further records can be found. In the circumstances, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request on the grounds that the relevant records have been released, and no further records were located after all reasonable steps to ascertain their whereabouts have been taken.
As noted above, the HSE redacted a small amount of information from one the records it released to the applicant, under section 37(1) of the Act. That section provides that, subject to the other provisions of section 37, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.
The information redacted by the HSE in this case concerns the family history of the applicant. The fact that this third party personal information is known to the applicant does not change the fact that such information may be exempt from release under the FOI Act. Furthermore, the fact that the applicant may have provided this information to the Hospital does not mean that he necessarily has any entitlement to it under FOI. Having examined the record in question, I am satisfied that the information refused by the HSE is personal information relating to individuals other than the applicant and that section 37(1) of the Act applies to this information.
I am also satisfied that none of the other provisions in section 37 apply. Section 37(5)(a) of the Act provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. It may well be the case that the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to ‘the world at large’ as the Act places no restriction on the subsequent uses to which the record may be put. Having regard to the content of the record, I find that the protection of the privacy rights of the third parities at issue outweighs the public interest in release of the records at issue. In the circumstances, I am satisfied that the public interest is best served by refusing access to the information at issue. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in refusing access to information it redacted under section 37(1) of the Act.
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 relating to the applicant’s request under section 15(1)(a) of the FOI Act on the basis that it has undertaken all reasonable steps to ascertain the whereabouts of the relevant records. I also affirm the HSE’s decision to refuse access under section 37(1) of the Act to the personal information of third parties contained on page 36 of the records.
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