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Whether the HSE was justified in its decision that vaccination records sought by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the HSE on 21 July 2014 for her medical records relating to vaccination trials conducted in 1970. The HSE refused the request on 29 August 2014 as it could find no relevant records. It explained, however, that it had identified an area of St. Loman's Hospital which possibly holds archived vaccination records but that it could not conduct a search of the area at the time due to possible asbestos contamination. It undertook to contact the applicant if relevant records were located when a search of the area had been carried out. The applicant applied for an internal review of the HSE's decision on 10 September 2014. The HSE issued its internal review decision on 22 October 2014, upholding the original decision.

During the course of the review the HSE wrote to the applicant on 4 March 2015 to inform her that the searches of the relevant area had been undertaken but that it had not located the records sought. Mr. Campbell of this Office subsequently wrote to the applicant on 24 March 2015 detailing the searches carried out by the HSE. As no response was received from the applicant, I consider that this review should be brought to a close by means of a formal binding decision. In conducting this review I have had regard to the HSE's communications with both this Office and the applicant, to the applicant's communications with this Office and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the information requested under section 10(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable searches have been conducted to ascertain their whereabouts.

Analysis and Findings

Section 10(1)(a) of the FOI Act 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. 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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. 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. It is not normally the Commissioner's function to search for records that a requester believes are in existence. 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).

As I have outlined above, Mr. Campbell of this Office wrote to the applicant on 24 March 2015 detailing the searches carried out by the HSE to locate the records sought. While I do not propose to repeat those details here, they are relevant for the purposes of this decision. I note that the applicant drew the HSE's attention to the fact that certain records were discovered in connection with the Commission to Inquire into Child Abuse, including documentation that revealed the names of certain children in a particular area who took part in a particular vaccination trial. However, I also note that such documentation was discovered to the Commission by the relevant pharmaceutical company. The HSE has confirmed that it does not hold this documentation. Having regard to the details of the searches undertaken by the HSE in this case in an effort to locate relevant records, I am satisfied that it has taken all reasonable steps to locate the records sought and I find that it was justified in deciding to refuse the request under section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator