Decision
Mr & Mrs X & the Health Service Executive South (the HSE)(FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 180414
Published on
From Office of the Information Commissioner (OIC)
Case number: 180414
Published on
Whether the HSE was justified in its decision to refuse the applicants' request for access to records pertaining to the review of their daughter’s X-ray
20 February 2019
On 23 January 2018 the applicants submitted a request to the HSE for access to complete files of medical records held from birth for one of the applicants and their daughter. On 6 March 2018, the HSE granted the request, apart from the redaction of a small amount of information from two pages of their daughter’s medical file on the ground that the release of the redacted information would involve the disclosure of personal information relating to third parties.
On 2 April 2018, the applicants sought an internal review of that decision. The HSE issued its internal review decision on 18 April 2018 in which it affirmed its original decision. On 30 September 2018, the applicants sought a review by this Office of that decision. In their application for review, they argued that the HSE had not issued a complete file in respect of their daughter.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.
During the course of the review the applicants made a number of submission to this Office. Having considered those submissions, it seems to me that the applicants do not fully understand the nature of the rights afforded by the FOI Act or the role of this Office. While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. Therefore, a person who wishes to obtain information from a public body must make a request for records that the body holds and that contain the information sought. The Act does not require public bodies to create records that a person believes ought to exist. If the body does not hold a record containing the information sought, then that is generally the end of the matter.
The applicants argued that there is a lawful obligation on any establishment to keep accurate records in order to issue a "complete file" as was sought in this case. They have raised many concerns about the level of care and treatment afforded to their daughter. Among other things they argued that;
I wish to make the following points in response to those arguments. Firstly, it is important to note at the outset that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. If the applicants are dissatisfied with the actions of the HSE in connection with the care and treatment afforded to their daughter, they may wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine their complaints.
Secondly, while the FOI Act does, indeed, allow individuals to seek the amendment of incomplete, incorrect, or misleading personal information, Ms Swanwick of this Office informed the applicants on a number of occasions during the course of the review that the scope of this review is limited to determining whether the decision taken by the HSE on the original request was justified and as such, we will not consider any issues relating to the amendment of records as they did not form part of the original request. I note that Ms Swanwick also informed the applicants that they were entitled to submit a fresh application to the HSE, under section 9 of the Act, if they wish to have any records amended.
Finally, this Office has no role in deciding whether certain information and records should now be placed on the relevant medical file to ensure that a "complete file", as the applicants understand it, exists.
On the matter of the missing records relating to the X-ray undertaken, the applicants stated that a subsequent review was undertaken of that X-ray and that neither the X-ray nor any records relating to that review were released to them. During the course of the review, the HSE provided the applicant with copies of both the X-ray image and the report of her daughter’s chest X-ray dated 25 April 2017. Ms Swanwick also provided the applicant with the details of the HSE’s submission wherein it outlined the details of its reasons for finding that no records pertaining to the review of her daughter's X-ray exist. The applicant subsequently made a further submission on that point.
Accordingly, the scope of this review is concerned solely with whether the HSE was justified in refusing access to records pertaining to the review of the X-ray in question.
For the sake of completeness, I should add that the applicants confirmed that they are not seeking access to the small amount of personal information redacted from two records held on their daughter’s medical file.
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. In such case, the role of this Office 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 his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The HSE’s position is that no records relating to the review of the relevant X-ray exist. In its submission to this Office, the HSE provided an explanation of the radiology review process carried out at University Hospital Kerry. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the HSE stated that the relevant X-ray was included in the radiology review. It stated that the X-ray was re-examined by another radiologist and given a “score of 1, with no addendum” which indicated that there was agreement with the original X-ray report. It explained that as there was no disagreement with the original X-ray report, no further steps were taken, the score was not recorded, and no documentation, including a letter to the applicant’s general practitioner, was generated. The HSE stated that it had consulted the Quality Manager in University Hospital Kerry, who confirmed that no records pertaining to the review of the X-ray had been created.
In essence, the applicants’ argument is that given that the X-ray was subject to the radiology review, further records should exist. For example, they are of the view that even where the X-ray received a score of 1, an addendum should have been created. I have no reason to doubt the HSE's submission in relation radiology review process followed, namely that no addendum was created for X-rays given a score of 1. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of that process. If the records sought do not exist then that is the end of the matter, regardless of whether or not a requester believes that certain records should exist based on his or her views as to what constitutes good administrative practice.
Having considered the HSE’s explanation as to why it does not hold further records relating to the X-ray in question, I find that the HSE was justified in refusing access to such records on the ground that they do not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicants' request for access to records pertaining to the review of their daughter’s X-ray under section 15(1)(a) of the FOI Act on the ground that no such records exist.
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.
Stephen Rafferty
Senior Investigator