Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-156471-P2Q3Z8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156471-P2Q3Z8
Published on
Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to complaints made by the applicant in 2011 and 2012 on the basis that the records no longer exist
2 May 2025
In a request dated 25 November 2024, the applicant sought access to a copy of the investigation file carried out by two named members of staff at a named hospital and other records in relation to 32 complaints he made during 2011 and 2012 about his mother’s care at the hospital. The applicant listed the dates of his complaints and requested the reasons for all decisions made in relation to each of his complaints and a copy of the relevant section of the Adverse Events Register where each of the complaints was registered. The applicant also sought a copy of the HSE’s official complaints policy/procedures and a copy of its patient charter.
In a decision dated 20 December 2024, the HSE refused access to records relating to the applicant’s complaints under section 15(1)(a) of the Act, saying the records had been confidentially destroyed in line with its record retention policy. The HSE provided the applicant with a copy of its National Healthcare Charter and Your Service Your Say complaints policy and directed the applicant to where he could access these records which are publicly available on its website. On 27 December 2024, the applicant requested an internal review of the HSE’s decision. On 29 January 2025, the HSE affirmed its original decision. In a letter dated 11 February 2025, the applicant applied to this Office for a review of the HSE’s decision.
During the course of this review, the HSE provided submissions to this Office detailing the searches it had undertaken and the reason it concluded it no longer holds records relating to the applicant’s complaints. The Investigating Officer provided the applicant with details of the HSE’s submissions and invited him to make submissions in the matter, which he duly did.
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 outline above, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant’s complaints on the basis that the records cannot be found after all reasonable steps were undertaken to ascertain their whereabouts.
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 and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the HSE provided this Office with submissions containing its reasons for concluding that no relevant records can be found, the details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have regard to them for the purposes of this review.
In its submissions to this Office, the HSE said the types of records concerned would typically include the complaint(s) submitted to the Hospital and related records generated by the Hospital. It said that when a complaint is received a complaint file is created containing all documents relating to the complaint, e.g. initial complaint, acknowledgement letter(s) to complainant, and investigation records dictated by the nature of the complaint. The HSE said that an Adverse Events Register does not exist.
In relation to the storage, filing, archiving, retention and destruction of the types of records sought by the applicant, the HSE said files are stored in archiving boxes, labelled and dated, in a secure room onsite. The HSE said all files relating to a complaint would be stored together and held for 7 years as per the HSE National Retention Policy before being confidentially destroyed. The HSE provided this Office with a copy of the HSE National Retention Policy, which states that, where possible, electronic copies of files should be created, therefore avoiding the need to keep the paper copies for 7 years. The HSE said no electronic records were created in relation to this case and no documentation in relation to the confidential destruction of the records was located. It also said that no other complaint records from the time period in question exist.
The HSE said searches were carried out onsite in the Director of Nursing office, the storage room, the respite room, and the RIP room, as well as at the offsite managed archive, and no records related to the request were located. The HSE said that, in addition, as part of the Internal Review process, a physical search of the General Manager files in Older Persons Services, Oak House, Millennium Park, Naas, Co. Kildare, was conducted and no records were found regarding the records requested. The HSE said the applicant’s mother’s medical file was searched having been recalled from the managed archive and no records relevant to the request were located.
The HSE said it spoke to the Senior Medical Officer who said while he remembered the patient having been a resident, he could not provide any records in relation to the applicant’s request as would not have held the complaint file(s). The HSE also said the staff members named in the request no longer work in the Hospital and one named investigator in particular was not contactable in relation to HSE records. The HSE said it spoke with the former Director of Nursing during the time period referenced in this request. The HSE said she reported that the records would have been held in the Director of Nursing office and later discarded as per policy. The HSE also said that the General Manager, Older Persons services, who was not in the post in 2011 and 2012, supported a search on 29 January 2025 of records retained from her predecessor as part of the Internal Review process and no records related to the request were located.
The HSE said the former Director of Nursing said locations where complaints records were typically stored during her time as Director of Nursing included the filing cabinet onsite in the Director of Nursing Office, a separate secure filing cabinet, and the offsite storage facility. The HSE said the current Director of Nursing facilitated a further search of these areas as part of its Internal Review and no records were located. The HSE maintains that it has undertaken all reasonable searches to identify and locate records related to the request and no records could be found after it took those steps, which it said would be consistent with the record management and retention policy mentioned above.
The applicant was invited to make submissions in response to the HSE’s submissions and while he maintains he has evidence to substantiate his claims about the treatment of his mother, he provided no information to suggest further searches are warranted.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. 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.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, 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 it is unable to locate any relevant records. To be clear, the HSE has not contested that the applicant submitted complaints, only that any records relating to such complaints would have been destroyed in line with its record retention policy. In the circumstances, while I appreciate the applicant will be disappointed by my decision, I find that the HSE was justified in refusing access to records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act.
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