Decision
Ms. X and The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-158085-R4T9S8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158085-R4T9S8
Published on
Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further specified records relating to the applicant’s late father on the basis that records do not exist or cannot be found.
19 November 2025
The applicant in this case was represented by her brother during the course of the review and therefore all references to communications with the applicant in this decision should be taken to include communications with her representative where appropriate. On 1 February 2025, the applicant submitted a request to the HSE for certain information relating to her late father. The applicant sought details of staff members who administered a re-dose of a specified medication to her father on 24 December 2017 while he was in hospital, specifically the staff member’s name, occupation, and registration number. She also sought access to drug monitoring charts relating to the administration of the medication on two specified dates, and all laboratory tests carried out in a specified period.
As the HSE did not issue a decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request in 20 March 2025. The HSE issued its internal review decision on 7 April 2025, wherein it noted that it had previously released to the applicant her late father’s medical files in 2019. It said a new search was carried out and no further records could be found. It said it would re-release the records previously released. On 8 April 2025, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review, the HSE provided submissions to this Office detailing the searches it had undertaken and the reason for concluding that no further relevant records exist or could be found. The Investigating Officer provided the applicant with details of the HSE’s submissions and invited her to make submissions in the matter, which were duly made.
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, including the comments and submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
It is important to note that 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. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
The HSE’s position is that no further relevant records containing the information sought exist or can be found. This is, in essence, a refusal to grant access to further relevant records pursuant to 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 after all reasonable steps to ascertain their whereabouts have been take. Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to the records sought by the applicant.
Before I consider the substantive matters in this case, I would like to make the following preliminary comment. The applicant expressed concerns about the HSE and made certain allegations against the care provided to her father. However, as she is aware, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
It is also important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
During the course of the review, and following engagements with this Office, the HSE located a roster sign-in sheet for 24 December 2017 which enabled it to identify one staff member who administered the relevant medication to the applicant’s father by matching their initials to a signature on drug monitoring charts. However, it said it could not identify a second staff member whose initials were recorded on the record. The HSE has now released the record in full to the applicant. Furthermore, the HSE said it spoke directly with the labs in two Hospital’s and was provided with laboratory result records not furnished to the applicant in a previous FOI request and has now released these records in full to the applicant. Finally, the HSE said that drug monitoring charts the applicant requested have been released to her twice previously, noting file part 20 and 21 contain the drug Kardex information sought. It said that all medical records and charts related to the administration of all prescribed drugs have been provided to the applicant.
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 further 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 had regard to them for the purposes of this review.
On the matter of the details sought as to who administered certain medication, the HSE said that the records rereleased to the applicant contain the initials of staff members who administered a specific medication to the applicant’s father and also contain the initials of the clinician who ordered the medication to be administered. It said the released records also show the full name signatures and initials of staff who administered various medications to the applicant’s father. The HSE said that the administration of drugs prescribed to the applicant’s father were done under the direction of clinical advice given to the nursing staff who were rostered on the day and that the initials of the clinician who gave the direction can also be found on the record. It said that all medical records and charts related to the administration of all prescribed medications, including the specific medication detailed by the applicant in her FOI request, have been released to the applicant.
In its submissions, the HSE provided additional context as to why it did not consider it could provide the applicant with the full name of the second healthcare professional who administered specific medication. It said that it consulted with the Hospital Manager, the Director of Nursing, and the Records Manager regarding the matter. It said that the hospital, at any given time, has Nurses who retire, move positions, are on maternity leave, or are on leave for other reasons. It said that in order to fill positions where there are no permanent staff, Agency staff (temporary staff) are employed to fill these positions. It said that while it is best practice to ensure that the Kardex with signatures and initials is kept updated by staff who are working on the Wards and administering medications, this may have been missed on rare occasions for a variety of reasons, such as Agency staff filling in, how busy the Ward is, or when an emergency occurs. It said that it cannot with absolute certainty view initials that are on the Kardex and with confidence identify the second staff member who administered the medication to the applicant’s father.
The HSE said that another impediment to providing the information requested and conducting searches is that by not having the full name of the healthcare professional who administered the medication and only having initials, it was not possible to search electronic records held. It said that by inputting just the initials of an individual in the search criteria, a large volume of records are returned which do not relate to the applicant’s FOI request. It said that when narrowing the scope of the search by using additional words, such as the Patients Name, the Ward names, Rostering Records, Kardex Records, the year/month/day, many records appear with the same two-letters. It said it cannot be confident that the results of the refined search identify with accuracy the second individual whose initials appear on the Kardex.
The HSE said that following searches, there is no incident report recorded regarding the late Mr Cullen on its National Incident Management System (NIMS). It also said that in response to a complaint by the applicant’s family, the hospital carried out a systems analysis by way of a desktop review and the findings of such indicated that there was no evidence of (the prescribed drug) toxicity. It said a report, dated 26 May 2025, was shared with the family. It noted that the report confirms no incident was raised on NIMS.
The HSE added that the Hospital’s Director of Nursing and Records Manager conducted paper searches in all possible locations where a record in the form of a Kardex or Signature Record may possibly be found from the date identified on the medication administration record for the applicant’s father. It noted that searches were carried out in the following areas:
• All stored on site paper records held by the hospital in attic storage, these included Rostering Records, Patient Records, HR Records, Kardex Signature Cards for the Year, Month, Day (s) the applicant’s father was a patient.
• All Wards which the applicant’s father was a patient on, including all files on the Wards.
• Human Resources Department conducted a search of HR records and Agency Records for the Year Month Day(s) which the applicant’s father was a patient, to ascertain if a staff member could be identified accurately and with 100% certainty by the initials shown on the medication administration chart. It said that no personnel record could be found that would guarantee that the person identified corresponded to the initials on the chart.
• The records which were released were reviewed again to see if any other healthcare worker initial or signature could be accurately identified as the person whose initials appear on the medication administration record. It said it could not identify with certainty a single individual that matched the initials on that record.
The applicant was invited to make submissions during the review and in response to the HSE’s submissions. The applicant provided this Office with detailed submissions and while I do not intend to repeat all of the details of her submissions here, I confirm that I have considered them in full for the purposes of my decision.
Among other things, the applicant contends that the information being sought concerning medical staff names is accessible due to such information being held as a matter of public record by a public body. The applicant maintains that the HSE refuses to provide the disclosure of information specific to her FOI request in order to cover up the identity of the staff member who administered specific medication to her father. The applicant argued that a serious incident in such circumstances as an overdosing of a patient would have been recorded by a HSE Supervisor or HSE Manager and consequently generate a record such as an ‘Incident Report’ in line with HSE policy and procedure which could assist in identifying the staff members who administered the medication. This argument was put to the HSE for comment and its response is noted above.
With regard to the applicant’s request for details of who administered the medication in question to her father, the question I must consider is whether the HSE has taken all reasonable steps to ascertain the whereabouts of records that might contain the information sought by the applicant concerning staff members who administered a specific medication. 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. I accept that the HSE cannot locate a record that contains definitive details of the identity of the second staff member. Having regard to its description of the searches undertaken and of the reasons it gave for not being in a position to identify the staff member whose initials are recorded on the record released, and in the absence of any evidence to suggest that further specified searches should have been undertaken, I am satisfied that it has, at this stages, taken all reasonable steps to locate the record sought and cannot do so.
I also accept that the HSE has released the laboratory result records in full to the applicant. Finally, having reviewed the content of the relevant records, I accept the HSE has issued drug monitoring charts to the applicant.
In conclusion, therefore, I find that the HSE has either released the records sought or has taken all reasonable steps to locate additional relevant records but cannot find them. Accordingly, while I appreciate this will be disappointing for the applicant, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, the any further relevant records sought 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, under section 15(1)(a) of the FOI Act, the applicant’s request for additional relevant records relating to her late father.
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