Decision
Ms Z and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-151805-M9B1X4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151805-M9B1X4
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a), to the applicant’s GP records from 1999 to 2000 on the grounds that they cannot be found or no longer exist
6 December 2024
In a request dated 12 November 2023, the applicant sought access to her GP records from the years 1999 to 2000. She stated that her current GP had requested all her records from her former GP via the HSE’s secure clinical email service, Healthmail, but did not receive her records from these years. The applicant also requested records from St Finbarr’s Maternity Hospital from when she was there in December 1999.
In a decision dated 17 November 2023, the HSE said that the applicant’s former GP confirmed that the practice does not hold records for a lengthy period of time and so they do not have records from 1999-2000. The HSE, therefore, refused the applicant’s request under section 15(1)(a) of the FOI Act. On 7 December 2023, Cork University Maternity Hospital decided to grant records from St Finbarr’s Maternity Hospital to the applicant in full.
On 5 March 2024, the applicant requested an internal review of the HSE’s decision to refuse the release of records. The applicant stated that her former GP’s secretary had informed her that her records from 1999-2000 were held in the practice and would have to be requested by her current GP via Healthmail. The applicant said that when her current GP did this, everything was sent except the records she was anxious to receive.
On 10 April 2024, the HSE responded to the applicant’s internal review request by affirming its original decision. It reiterated that the applicant’s former GP confirmed to the HSE that the GP practice no longer holds records dated as far back as 1999-2000.
On 2 September 2024, the applicant applied to this Office for a review of the HSE’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 applicant’s comments in her application for review and to the submissions made by the HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to the applicant’s GP records from 1999-2000 on the ground that they no longer exist.
The Investigating Officer asked the HSE why the GP practice no longer held the applicant’s records from 1999-2000. In its response, the said it contacted the applicant’s former GP who said that the applicant’s records from 1999-2000 were most likely shredded in error in May 2023. It said this occurred when some hard copy files which had been stored onsite at the GP practice in a dedicated area were confidentially shredded as they pre-dated the introduction of the practice’s electronic system in 2002. The GP stated that the applicant’s records dating before 2002 were shredded along with other patients’ records. The GP said that the applicant had not attended the practice since 2012 and so the hard copy records before 2002 were not in use.
The GP stated that she first became aware of the possibility that the records may have been destroyed on 3 April 2024 after correspondence with the HSE. Searches were then carried out of the practice’s storage area and hard copy records relating to the applicant were not found. The GP said that the potential error was then recorded in the practice’s risk management file.
The HSE said that the GP stated that hard copy records in the practice were rechecked and none relating to the applicant were found. The GP stated that the applicant’s electronic file was provided to her current GP, with records commencing in 2002. She said that none of the applicant’s records have been destroyed since May 2023.
The Investigating Officer asked if there was an electronic version of the applicant’s GP records from 1999-2000. She asked if the hard copy records were ever scanned or transferred somehow when the practice was moving records to its electronic system. The HSE responded by stating that the GP said that when the practice moved to the electronic system, smaller hard copy records were scanned into the system. The larger hard copy files were initially put in a filing cabinet in the practice’s reception and then were eventually moved to a storage area. In terms of the applicant’s records, the GP said that her hard copy file was larger and so it was not scanned into the practice’s computer files. The GP stated that the applicant’s file would have been kept at reception with the other hard copy files until it was moved to the storage area.
Prior to 2002, the GP said that the applicant’s notes would have been stored in hard copy form only. If the applicant’s records dating before 2002 had not been mistakenly shredded, the GP said that they would have continued to be held in only hard copy format in the storage area. As these were not located in the search, the GP concluded that they had been confidentially shredded. The GP stated that, during the course of this review, she has also notified the Data Protection Commission of this potential breach.
This Office wrote to the applicant with an update following the HSE’s submissions and gave her the opportunity to provide submissions or comment further. The applicant declined to do so.
While it is very disappointing that the records in question appear to have been destroyed, our role is confined to reviewing the decision taken by the FOI body on the applicant’s request for records. Having regard to the details of the HSE’s submissions, I am satisfied that all reasonable steps to ascertain the whereabouts of the records sought have been taken. On this basis, therefore, I find that the HSE was justified in refusing the request under section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing, under section 15(10(a) of the act, the applicant’s request for her GP files form 1999 and 2000 on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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