Decision
Mr E and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130280
Published on
From Office of the Information Commissioner (OIC)
Case number: 130280
Published on
Whether the HSE was justified under the provisions of section 10(1)(a) of the FOI Act in its decision to refuse records sought by the applicant containing the names of individuals who had accessed his medical file, on the basis that such records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
27 May 2014
The applicant submitted an FOI request to HSE West on 9 September 2013 requesting the following:
1. The names of all employees of the HSE who have accessed my records from the Psychology Department, records made by a named HSE employee during the course of my consultations with him.
2. The names of any outside Department, Institution or body (including the Ombudsman's Office), which may have requested access or accessed my records. Regardless of whether that access was made directly or through third parties.
The HSE responded to this request on 7 October 2013 identifying the positions of persons that have access to client files in HSE West's Psychology Department and stating that no outside parties accessed or sought access to the applicant's file. The HSE stated that usually the only person that has access to a client's file is that person's psychologist. On 8 October 2013 the applicant applied for an internal review of this decision. A response from the HSE was issued on 13 January 2014 upholding it's original decision. The applicant wrote to this Office on 19 January 2014 and requested that his application for review be continued on the basis that he was not satisfied with the outcome of the review of the HSE's internal decision. In his letter the applicant specified four persons whom he believed had accessed his file that had not been named by the HSE, and stated his belief that An Garda Síochána also accessed his file. The applicant requested a record of all persons that had accessed his file.
During the course of this review the HSE identified by name the officers it had already identified by title as having had access to the applicant's file, and released these names to the applicant. It further stated that it did not keep further records relating to the applicant's request, and that it did not have a record of all persons that had accessed the applicant's file.
Christopher Campbell of this Office wrote to the applicant advising that the HSE had stated it's position that it did not hold any further records relating to the request, and that he considered that the HSE had taken all reasonable steps to locate the records sought by the applicant. The applicant indicated that he wished the Information Commissioner to make a binding decision in this matter and so it is my view that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
• the decisions of the HSE on the matter and its communications with this Office;
• the communications of the applicant with the HSE and the submissions of the applicant to this Office;
• the provisions of the FOI Act.
This review is concerned with the question of whether the HSE was justified in refusing access to the information requested, specifically a record of the names of all persons who had accessed the applicant's file, on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. It is important to note that this Office cannot deal with issues that fall outside the scope of the FOI Act.
I should explain at the outset that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information, as it does not oblige public bodies to create or compile information which does not exist. Accordingly, the question I must consider is whether the HSE was justified in deciding that the records, containing the information sought, do not exist, or cannot be found.
Section 10(1)(a) of the FOI Act states:
A head to whom a request under section 7 is made may refuse to grant the request if -
(a) the record concerned 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. 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 were reasonable. 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. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie) .
In this particular case the HSE stated that a record sought by the applicant, that is, a record of persons that have accessed the applicant's file, does not exist. The HSE also stated that the persons specified by the applicant in submissions during investigation of this case have not had access to the file. The HSE informed this Office that these persons have not requested access to the applicant's file, and if they had, access would not have been granted as they have no role in the applicant's therapeutic relationship with the Psychology Department. During the course of this review, the HSE provided details to the applicant of one individual named in the applicant's submissions who formerly worked with the applicant but who has not accessed his file since their contact ended in the year 2000. The HSE also state that An Garda Síochána have not accessed or sought access to the applicant's file.
The position of the HSE is that the records requested by the applicant do not exist. Having considered the matter I am satisfied that the statement by the HSE that it does not have the record sought by the applicant is reasonable. On this basis I am also satisfied that the HSE is justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act and I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE.
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