Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 140072
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Hospital was justified in its decision to refuse access to records comprising medical notes relating to the applicant under section 10(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 had been taken
8th July, 2014
On 30 November 2013, the applicant submitted a Freedom of Information request to the Hospital for access to records comprising, "medical records relating to [her] consultation in [the] back pain screening clinic on 28th November 2013". On or around 6 January 2014, the Hospital furnished the applicants with records relating to her request. However, no formal decision issued in that regard. By way of email dated 6 January 2014, the applicant expressed her dissatisfaction with the records she had received, stating that she wished to receive "copies of all hand written entries in [her] medical records, relating to my consultation with [a named consultant] on Friday 29 November 2013". While a volume of correspondence passed between the applicant and the Hospital on foot of this email, no formal decision issued.
On 27 March 2014, the applicant applied to this Office by way of email, on the basis that she had not received a satisfactory reply from the Hospital in relation to her request. Ultimately, on 5 June 2014, a decision issued from the Hospital to the applicant, stating that no further records could be located in relation to her request, and that the application was thus refused under section 10(1)(a) of the FOI Act.
I note that Mr. Niall Mulligan of this Office has advised the applicant that the decision of the Hospital was justified in his view. The applicant disagreed with his analysis and made further submissions. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Hospital's decision on the matter and its communications with this Office, as well as the applicant’s communications with this Office and the Hospital. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether the Hospital was justified in its decision to refuse access to the records sought pursuant to section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
The applicant’s original request was for access to records comprising, “medical records relating to [her] consultation in [the] back pain screening clinic on 28th November 2013". In her email of 6 January 2014, the applicant stated that she was not satisfied with the records that she had received, and that she wished to receive, in particular, "copies of all hand written entries in my medical records, relating to my consultation with [a named consultant] on Friday 29 November 2013".
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).
In submissions to this Office, the Hospital produced correspondence from the relevant Consultant, wherein he explained the background to his interaction with the applicant. The Consultant stated that the applicant had not been under his care, but rather he had been asked by her treating doctor to review the applicant's MRI scan. He explicitly stated that, because of the nature of his interaction with the applicant, he had not made any hand written notes in the course of his consultation with the applicant. Having considered the matter, I have no reason to doubt this submission.
The applicant, in her submissions, makes various complaints with regard to her treatment by the Hospital. However, she provided no evidence going the nett question arising in this application: whether hand written notes of the consultation in question exist.
The position of the Hospital is that it cannot find any records relevant to the applicant's FOI request. I am of the view that, given the response by the relevant Consultant to the Hospital's enquiries, that it was reasonable to reach this conclusion. Accordingly, I am satisfied that the Hospital has taken 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 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