Cinneadh
Mr. Y & The Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154347-F5H0P2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154347-F5H0P2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain GP records on the ground that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
16 July 2025
On 9 July 2024, the applicant made a nine-part request for various medical records relating to him. In parts 1‒4 of his request, the applicant sought his records held by four named GPs that he had attended at various times since 2012. On 7 August 2024, the HSE informed the applicant that various parts of his request would be processed by different parts of the HSE.
In a decision dated 18 September 2024, the HSE issued a decision that dealt with parts 3 and 4 of the FOI request, in which it granted access to records held by the applicant’s two most recent GPs. On 15 October 2024, the applicant sought an internal review of that decision on the ground that records relating to part 3 of his FOI request were missing. On 12 November 2024, the HSE affirmed its original decision. It said that the records relevant to parts 3 and 4 had been released to the applicant in full. It said that all of the records held by the GP named in part 3 of the FOI request would have been moved to the GP named in part 4 of the applicant’s FOI request. On 9 December 2024, the applicant applied to this Office for a review of the HSE’s decision. Essentially, the applicant contends that he has not received a full copy of his GP records and noted that he received no records from the GP named in part 1 of his request. Th applicant contends that his current GP should hold the medical records from his previous three GPs.
During the course of the review, the HSE released further records to the applicant that were originally held by the second-named GP, and some further records held by the fourth-named GP. The Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined the searches it had conducted and its reasons for concluding that further GP records do not exist or cannot be found. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 referred to above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
It appears from the records provided to this Office by the HSE that it separated the applicant’s request into various parts to be processed by different areas within the HSE and by relevant hospitals.
The review is concerned with the HSE’s decision in relation to parts 3 and 4 of the applicant’s FOI request, where he sought records from two named GPs. As noted above, the applicant contends that the fourth named GP (his current GP) should hold records from all four named GPs as his medical records from his previous GPs should have transferred to his current GP. He provided a copy of an email in this regard dated 23 August 2024 from the HSE that said the second-named GP had confirmed to the HSE that he had transferred any medical records he held relating to the applicant to the fourth-named GP. The applicant said that the second-named GP should have held records from the first-named GP, and therefore these records should have been released with the records relevant to part 4 of his FOI request.
The HSE’s position is that it has released the GP records held by three of the four named GPs, and at this stage it is only the GP records of the doctor named in part 1 of the applicant’s request (hereafter referred to as Dr A) that have not been provided to him. The applicant did not dispute this understanding when it was put to him by the Investigating Officer. The HSE’s position is that records from Dr A do not exist or cannot be found and that it has taken all reasonable steps to ascertain their whereabouts.
Accordingly, this review is solely concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant’s GP records from Dr A on the grounds that the records do not exist or cannot be found.
It is important to note that 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. This means we have no role in examining actions taken by the various GPs named by the applicant in his FOI request in relation to his medical records, including the handling or transfer of those records, or in regard to the contents of the medical records themselves.
Section 15(1)(a)
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 his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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, details of the HSE’s submissions were provided to the applicant. While I do not intend to repeat those details in full here, I confirm I have had regard to them, and to the submissions made by the applicant, for the purpose of this review.
In its submissions to this Office, the HSE said it cannot locate the records which were previously held by Dr A. It stated that it consulted with staff on foot of the applicant’s statement that Dr A’s records should have been transferred to the second-named GP, and therefore should form part of the records held by the fourth-named GP. The HSE said that Dr A retired from practice approximately 8 years ago in 2017. It said that it was unable to contact Dr A as the HSE does not hold any contact or location details for him, and it did not receive a response from the Irish Medical Council to its correspondence seeking contact details for Dr A.
It said that the practice of the second-named GP advised the HSE that the applicant’s first consultation with that clinic was on a specified date in 2017, and it did not have the applicant’s previous medical history. The HSE said that the second-named GP’s practice stated that the applicant would have been given a transfer of medical records form for him to give to Dr A, but unfortunately it did not seem to have received any previous records. The HSE said, however, that the fourth-named GP confirmed that she received copies of the applicant’s GP records held by the second-named GP. The HSE said that Dr A’s practice was not taken over by another GP following his retirement in 2017, and its understanding is that the property the practice was in was subsequently sold.
The HSE said that, as part of processing the applicant’s FOI request, it engaged with the relevant Primary Care (GP) Unit within the HSE. It said that the GP Unit carried out a search on the Primary Care Reimbursement Service database to determine if the applicant was a medical card holder, the timeframe in which he was a medical card holder, and the GP(s) he was registered with. It said that the database shows he was registered as a medical card holder with Dr A from a specified date in 2012 to a specified date in 2016. It said that the system shows his medical card was withdrawn after that specified date in 2016. It said that he did not hold a medical card between this date in 2016 and a specified date in 2018. The HSE said that during this period if the applicant attended a GP he would have done so in a private capacity and as a consequence any such records, during this period, would not fall within the scope of the FOI Act. The HSE said that the applicant was granted a further medical card in 2018 and was registered under the doctor named in part 2 of his request.
The HSE said that the applicant was not a holder of a medical card at the time of Dr A’s retirement, which it said was in 2017. It said that the practice closed following Dr A’s retirement, and as the applicant was not a medical card holder at the time, the HSE’s letter regarding Dr A’s retirement would not have been sent to him. It further said that, as he did not hold a medical card at the time, there was no requirement on Dr A or the HSE to assign the applicant to another GP or to transfer his files to another GP. The HSE said that it is unaware of whether Dr A informed his private patients of his impending retirement, due to the length of time since his retirement. It said that it was not possible for the HSE to establish what happened to the patient records held by Dr A.
As part of its submissions, in relation to the transfer of records between a GP and a hospital, the HSE said that GPs do not typically transfer records to a hospital. It said that a GP makes patient referrals and may provide supporting documentation with such referrals. It said that test and scan results, clinic letters, discharge summary letters, etc. are issued by the hospital back to the referring GP.
In his submissions to this Office, the applicant raised questions about the transfer of his medical records between his GPs and in particular claims there were mistakes made when transferring his records from the second-named GP. He suggested that similar failings could have happened in the transfer of his records from Dr A. While I have noted the applicant’s comments, he has not in my view provided any evidence which contradicts the HSE’s submissions in relation to its efforts to locate the records of Dr A.
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. 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, or are known to have existed in the past, 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 sought ought to exist.
It seems to me that the HSE’s position is, in essence, that, as the applicant was not a medical card holder at the time of Dr A’s retirement, it would not have acquired the records held by Dr A to transfer to another GP, and it has no means of contacting Dr A to determine what happened to any medical records he retained at the time of his retirement. While the applicant has asserted that Dr A’s records could or should have been received by the second-named GP, he has not provided any substantive evidence in my view that shows the HSE has not taken all reasonable steps to locate the relevant records at this stage.
While I appreciate that the applicant is disappointed that the HSE cannot locate Dr A’s records, our role is confined to reviewing the decision taken by the HSE on the applicant’s request. Having regard to the submissions before this Office, and in the absence of any evidence to suggest that further relevant searches ought to be undertaken, I am satisfied that the HSE has taken all reasonable steps to ascertain the whereabouts of Dr A’s records. Accordingly, I find that the HSE was justified in refusing part 1 of the applicant’s FOI request for records held by Dr A under section 15(1)(a) of the FOI Act on the basis that the records do not exist or cannot 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 decision of the HSE to refuse part 1 of the applicant’s FOI request for records held by Dr A 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.
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Richard Crowley
Investigator