Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-159340-P3Y1X1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159340-P3Y1X1
Published on
Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further medical records relating to the applicant on the ground that no further records exist or can be found after having taken all reasonable steps to locate the records sought
7 November 2025
In a request dated 7 August 2024, the applicant sought access to her medical records from a number of services across the HSE, including University Hospital Waterford (UHW), St Luke’s Hospital Kilkenny, Tipperary University Hospital, and her GP. This review concerns the HSE’s decision on access to records held at University Hospital Waterford. Access to the applicant’s GP records is the subject of a separate review by this Office.
The applicant sought access to all her medical records from UHW, including records from A&E, inpatient and outpatient clinics including orthopaedics, ENT, ophthalmology, physiotherapy, respiratory, rheumatology, neurology, gynaecology, Xray, audiology, scans, and imaging. She also requested records of waiting lists past and present, including times/durations and records of referrals in and out of UHW.
On 7 March 2025, as the HSE had not issued a decision on her request, the applicant sought an internal review of the HSE’s deemed refusal of her request. On 12 March 2025, the HSE released a number of records to the applicant, with personal information of third parties redacted from some of those records under section 37(1) of the Act.
On 19 May 2025, the applicant applied to this Office for a review of the HSE’s decision. In her application for review, she said that multiple records were missing from the records she had received, including records relating to audiology, physiotherapy, A&E, ENT and waiting lists. She also said that some of the records released were illegible.
During the course of the review, the HSE released a number of additional records it had located. The Investigating Officer provided the applicant with details of the HSE’s submissions about the searches it had undertaken to locate the records sought by the applicant and invited her to make submissions in the matter, which she 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 outlined above and to the submissions made by the HSE and the applicant. I have decided to conclude this review by way of a formal, binding decision.
The HSE’s position is that, following the release of additional records during the course of the review, no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a), to further records falling within the scope of the applicant’s request.
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.
The applicant provided this Office with a list of the records she believed to be missing from what the HSE had released to her, including:
• Correspondence from the hospital directed to the applicant, and validation responses from her to the hospital
• Details of transfer of treatment from UHW Respiratory Waiting List to the Respiratory Department, Mater Hospital Cork in 2021 under NTPF
• The past and present waiting list information request for waiting lists she was on, including the times and waiting durations
• Page 2 of the National General Referral Form in 2021 on page 80 in the original file received
• The applicant said she was sent by her then GP to ENT who sent her to check in via A&E. The applicant said she saw an ENT consultant three days later and had a hearing/audiology assessment in the Audiology Department. She said she did not receive any of these records.
• Physiotherapy records for attendance at St Teresa Unit Waterford Regional Hospital (now UHW) in 2009 and 2010. The applicant said she believes she also attended physiotherapy in the Hospital on another occasion after 2007.
• A&E attendance records after a car accident circa 1997-1999.
• Page 13 in initial file references A&E attendance in 2007, but no records of this.
• A&E 1991 Xray/report of knee not present in mircrofile despite being referenced by a doctor on page 56
• No records prior to 1991
The Investigating Officer put this list to the HSE and asked it to explain the absence of these records and the searches it carried out. Details of the HSE’s submissions were provided to the applicant. While I do not intend to repeat the submissions from the HSE and the applicant in full here, I can confirm I have had regard to them for the purpose of this review.
In its submissions, the HSE stated that UHW has a number of IT management systems. The patient management system (IPMS) contains records of attendances from November 2013 to date. Prior to that, the patient management system used by UHW was PAS which commenced in circa 1989/1990 - 2013. The HSE said the specialty and date of the record requested determines which system to search. The HSE said that both patient management systems were checked for each record requested by the applicant. The HSE noted that the majority of information is held on the Healthcare Record for each patient. It said, the applicant’s Healthcare Record was requested from the Healthcare Records Department and checked for all requested records. The HSE said it also confirmed with the Healthcare Records Department that no other charts were in existence for the applicant.
The HSE said that UHW also utilizes offsite storage, for the archiving of older records. The HSE said it consulted with the offsite storage company to ascertain if the specific records pertaining to the request, (which are not contained on the Healthcare Record), were held by them. The HSE used the relevant data bases, per specialty, to request each of the requested records. It said, unfortunately the storage company were unable to locate any additional records.
The HSE stated that the ENT and Emergency Department records specified by the applicant from 2011 and 2024 and physiotherapy records from 2007 and 2010 were not contained in her Healthcare Record. The HSE said that the offsite storage company, the Emergency Department Secretary and the Physiotherapy Department all confirmed that no records were held for the dates specified. The HSE stated that the Physiotherapy Department was contacted directly in relation to records on attendance at the St Teresa Unit in 2007, 2009, and 2010. It said, the staff member confirmed that after consulting the database, no records were found for these dates. The HSE also stated that there were no records found dated prior to 1991.
It stated that the records the applicant stated were missing, including a letter from 2015, hospital scripts from 2022 – 2024 and medical certs and Xray requests from 2016 and 2017 were searched for, but could not be found. In its submissions, the HSE said that the Audiology Department said it found no records in its database but suggested that the requested records may be held by Audiology Services in Community Care. The HSE said the part of the request seeking audiology records was transferred from UHW to Audiology Services in the Community to locate records there. However, I understand the Community Audiology Services has since informed the applicant that it is does not have Audiology notes for the dates referenced by the applicant.
The HSE said it conducted an extensive search of its IT management systems, including IPMS, PAS, Laboratory, NIMIS (radiology), TRAX (Emergency Department records) and T-Pro (Referral/clinic letters system) and has no record of the applicant having attended University Hospital Waterford on either 05/04/2011, 08/04/2011, 01/10/2024, or the physio department in December 2009/January 2010 or 2007.
The HSE said that it released an additional nine records to the applicant which were not on her Healthcare Record at the time of her original request, which included:
• Correspondence from the hospital directed to the applicant and validation responses from her to the hospital.
• Details of transfer of treatment from UHW Respiratory Waiting List to the Respiratory Department, Mater Hospital Cork in 2021 under NTPF.
• Current Waiting list information
• Page 2 of the National General Referral Form from 2021 on page 80 in the original file.
• A 12 lead ECG document from 2023
• 2010 Rheumatology attendance sheet with a named doctor
• 2019 National General Referral Form page 2
• 2023 Emergency Department assessment
• 2013 Emergency Department assessment
For Emergency Department records, the HSE said that when a patient attends but is not admitted, the records are sent to the GP and only the carbon copy remains with the Hospital. The HSE said that this might explain the poor quality of what the applicant has received. The HSE stated that the applicant may wish to engage with her GP to access a better-quality version of these records.
Finally, the HSE said that none of the records sought would have been destroyed in line with its Records Retention Policy.
The applicant was provided with an update following the HSE’s submissions and release of additional records. She was given the opportunity to provide submissions of her own which she duly did. In her submissions, the applicant raised concerns about how the HSE dealt with her request, about its record management practices and about the searches undertaken by the HSE to locate her records. The applicant listed a number of records that are still missing. The applicant also attached her physiotherapy appointment card listing her attendance and she stated that this should indicate the existence of records in relation to this.
The Investigating Officer put the applicant’s submissions to the HSE and asked it to address the gaps in her records identified by the applicant. The HSE made the following comments in its response to the applicant’s submissions. It said, that when the radiology archives were checked for a knee X-Ray the applicant said she had in 1991 which was referred to in the records but was not included in the release, this could not be found. However, the HSE said that, during this review, it located radiology images from 1998 which it released to the applicant. The HSE informed the applicant that this was the oldest record the radiology department could locate for her.
In response to the applicant’s query about records missing relating to her transfer from UHW to the Mater Hospital Cork, the HSE said that the only records it holds relating to the applicant in the Mater Hospital Cork are those on pages 21, 24-35, and 68-70 of the records already released. In regard to the applicant’s query about records relating to her position on waiting lists, the HSE said that it contacted the Waiting List Department again and it was able to generate a report which captures the requested information. The HSE said that this has now been made available to the applicant.
In reference to the applicant providing her physiotherapy appointment card, the HSE said that the physiotherapy department and St Theresa’s Unit were contacted again to search for relevant records. The HSE said that both the department and the Unit advised that they have not archived any physiotherapy notes at any stage and, having conducted a comprehensive search for the requested records, they could not be located.
In her submissions to this Office, the applicant stated that the requested ECG record from 10 November 2023 had not been provided. When asked to clarify, the HSE said that the Cardiology Manager was consulted again and, after conducting a comprehensive search of the cardiology IT system, she confirmed that there is no record held of the applicant attending cardiology on the specified date. The HSE said that a copy of a 24 Holter monitor dated 25 October 2023 was released to the applicant as part of her original request on pages 40-51. The HSE stated that it also released a record of the applicant’s ECG dated 22 October 2023.
It 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.
The applicant’s position is that further records ought to exist across a number of areas within UHW. While I accept the possibility that further records may exist, the question I must consider in this case is whether the HSE has at this time taken all reasonable steps to locate the whereabouts of the records sought by the applicant in her original FOI request.
While I appreciate that the applicant will be disappointed by my decision, having considered the submissions before this Office, I am satisfied that the HSE has at this time taken all reasonable steps to locate the records sought by the applicant. I do not consider it appropriate to direct the HSE to continue its search efforts indefinitely in the hope that further records might be located. In the circumstances, I find that the HSE was justified in its decision to refuse access to the further records sought by the applicant under section 15(1)(a) of the FOI Act.
With regard to the applicant’s comments about the poor quality of some of the records released to her, I suggest that she contacts the HSE directly to see if it can provide a better copy of those records or alternatively to allow her to inspect the original records. Finally, I wish to note that any records created since the applicant made her request on 7 August 2024 do not come within the scope of this review. Should the applicant wish to do so, it is open to her to make a new request for any such records.
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 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