Decision
Mr Z and Children's Health Ireland at Temple Street
From Office of the Information Commissioner (OIC)
Case number: OIC-154512-F2J8B3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154512-F2J8B3
Published on
Whether CHI was justified in refusing access, under section 15(1)(a) of the FOI Act, to copies of the applicant’s radiology imaging on the basis that the records sought cannot be found after all reasonable steps were undertaken to ascertain their whereabouts
15 April 2025
In a request dated 22 November 2024, the applicant sought access to copies of his medical records including x-rays and scans. On 2 December 2024, CHI refused the request under section 15(1)(i) of the FOI Act on the basis that the applicant’s Healthcare Record was previously released to him in 2022 following a Subject Access Request for his medical records. It also refused access to the applicant’s radiology imaging under section 15(1)(a) of the Act as its Radiology Department were unable to locate his radiology imaging. On 5 December 2024, the applicant requested an internal review of CHI’s decision in relation to his request for copies of x-rays and scans. On 9 December 2024, the Hospital affirmed its decision. It said the applicant’s radiology imaging cannot be located and noted that a copy of his Radiology Reports were release to him in 2022 with his Healthcare Record. On 14 December 2024, the applicant applied to this Office for a review of CHI’s 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 correspondence outlined above and to the submissions made by CHI in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether CHI was justified, under section 15(1)(a) of the FOI Act, in refusing access to a copy of the applicant’s radiology imaging on the basis that the records cannot be found after all reasonable steps were undertaken to ascertain their whereabouts.
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. 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 their 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 other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
During the course of this review, the Investigating Officer invited CHI to make submissions detailing the steps it took to identify and search for the applicant’s radiology imaging records and about its records management practices generally. In its submissions to this Office, CHI said that the radiology imaging was refused under section 15(1)(a) because the Radiology Department had previously advised the imaging could not be located following a Subject Access Request the applicant made in 2022. CHI said that from 1998 radiology imaging was sent to Iron Mountain, a secure record storage archiving company, for offsite storage from 1998 to 2009. From 2009, CHI said all radiology imaging is contained on its radiology system referred to as NIMIS; the National Integrated Medical Imaging System. The Hospital said all of the applicant’s radiology imaging was performed in 2000 except for an ultrasound in 2002. It concluded that the applicant’s radiology imaging would have been sent to Iron Mountain for storage.
CHI said the Radiology Administration Manager reported that the radiology imaging held at Iron Mountain could not be located. It said this manager advised they were able to locate the “historical number” which it used to search the off-site storage company Iron Mountain where hard copies have been stored since 1997. It said that when searching the Iron Mountain database, it was unable to locate any images for the applicant and was therefore unable to provide digitised copies of the images requested by the applicant. It said it was not aware of any other offsite storage facilities used for radiology imaging and could not account for why the applicant’s images are missing. The Hospital said Iron Mountain requires the name and historical number to be on their database to search for any imaging it holds offsite.
In a subsequent communication with CHI, the Investigating Officer sought clarification about the actual steps taken to locate the imaging and asked CHI to provide further details of its attempts to identify and locate the records sought, including what steps, if any, did CHI take to request Iron Mountain to perform searches for the records The Investigating Officer also sought further clarification in a subsequent follow-up email seeking information on all of the criteria that can be used to search for records on internal electronic filing/ storage systems or on databases of records stored by Iron Mountain. He asked, for example, if files can be identified by criteria other than the historical number, such as by name or date-of-birth. CHI were asked to consider if the records may have been misfiled and what steps might be taken to consider where the records might be held, as opposed to ought to be held. In response to our requests for clarification, CHI said it liaised with the Radiology Administration Manager and that it has nothing further to add to its previous submissions.
My analysis
As noted above, CHI said that the applicant’s radiology imaging was performed in 2000 and in 2002. As such, there is no dispute that the radiology imaging sought by the applicant existed at some stage. While I accept that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are lost or simply cannot be found, what the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate 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 records should or might exist.
However, in my view CHI has provided this Office with insufficient details to enable me to find that it has undertaken all reasonable steps to locate the imaging records sought by the applicant. In my view, if CHI was unable to identify records using the applicant’s historical number when it checked its database, it would seem reasonable for CHI to have engaged with Iron Mountain to ascertain whether other criteria might be used to search for the missing imaging records, whether that be possible manual searches of hard copy records or the use of other criteria to interrogate its database.
It is important to note here that this Office is unfamiliar with CHI’s systems and processes and that we rely on FOI bodies to provide clear and sufficiently detailed explanations of their systems, processes and the searches undertaken in order to allow us to reach informed conclusions as to whether all relevant searches have been undertaken. It is disappointing that CHI did not provide any substantive response to requests for further clarification sought by this Office about its record management practices in relation to the records at issue, the efforts it undertook to account for the possibility that the records may have been misfiled or about the possibility that Iron Mountain may have been able to assist in its efforts to locate the records sought. In the absence of further details from CHI, I simply cannot affirm its decision under section 15(1)(a) of the Act as I am not satisfied that CHI has demonstrated that it has taken all reasonable steps to locate the imaging records sought by the applicant. Accordingly, I find that CHI was not justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act and I direct it to consider the applicant’s request afresh. Should CHI decide to refuse the applicant’s request under section 15(1)(a), I recommend it include in its decision detailed information relating to the searches it carried out and explain the basis for its decision having regard to the matters raised above.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul CHI’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act and I direct it to consider the request afresh.
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.
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Richard Crowley
Investigator