Decision
Ms M and Beaumont Hospital
From Office of the Information Commissioner (OIC)
Case number: 130262
Published on
From Office of the Information Commissioner (OIC)
Case number: 130262
Published on
Whether the Hospital was justified in its decision to refuse access to records relating to the applicant's late father under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
10th February 2013
The applicant made a request to the Hospital for access to medical records relating to her late father on 17th May 2013. The records requested were originally held by St Laurence's Hospital ("the Richmond") and on its closure they were transferred to Beaumont Hospital. In its original decision of 21st May 2013 the Hospital refused access to the records requested on the basis that they could not be located . The applicant sought an Internal review of this decision on 25th May 2013. In its Internal Review decision the Hospital upheld their original decision. The applicant applied to this Office for a review of this decision on 23rd October 2013. The Hospital have relied on section 10(1)(a) of the FOI Act to justify their refusal to release these records.
I note that Mr David Logan of this Office advised the applicant that the decision of the Hospital was justified in his view. The applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
This review is concerned solely with the question of whether the Hospital was justified in its decision to refuse access to records on the grounds of section 10(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. .
The original request was for access to medical records relating to the applicant's late father who died in the Richmond Hospital in 1982. The Hospital refused access to these records on the basis of section 10(1)(a) of the FOI act.
Section 10(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.
In this case the records in question were originally held by the Richmond which closed in 1987. On its closure all records held by the Richmond became the responsibility of Beaumont Hospital. Closed files relating to patients who would not be continuing treatment in Beaumont Hospital were moved into storage in St Brendan's Hospital, Grangegorman. However all pre 1980 records along with a number of records relating to 1980 - 1987 were destroyed by a fire in this storage facility in 1993. Approximately 5,000 boxes of records were salvaged and moved to an archive facility in Kings Inns then subsequently to the premises of a company retained by the Hospital to manage and store dormant and archived records. These records were not catalogued by the Hospital and as such the Hospital has no knowledge of what these records contain. The Hospital has decided that the task of cataloguing the records would be too onerous given the costs involved and the resources that would be required to carry out the work. This decision was made on the basis of a test exercise where 100 boxes were searched and catalogued by hospital staff and the Hospital have confirmed to this Office that the records requested were not among those catalogued. In a submission to this Office the Hospital state that these records are scheduled for destruction as per the decision of the Hospital's Senior Management Team taken at a meeting on 11th March 2013. This is in line with the National Hospitals Office (NHO) Code of Practice for Healthcare Records Management (2007) which states in relation to oncology records that such records should only be retained for 25 years after the closure of the particular file. The records in question date from 1982, over 30 years ago, and as such would have been eligible for destruction in 2007.
The position of the Hospital is that it cannot find any further records appropriate to the applicant's FOI request. Given the significant financial cost and the resources required I am of the view that it would be not be reasonable to ask the Public Body in question to commit to a full search of the records currently held in storage, particularly given the uncertainty over whether the record requested still in fact exists. Having reviewed the steps taken to locate the records as well as the Hospital's record management policies, I am satisfied that it has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Beaumont Hospital in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator