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Whether the HSE was justified in its decision to refuse access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found after reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

I should state at the outset that the manner in which the HSE processed the applicant's FOI request was most unsatisfactory as regards the statutory time frames. On 30 March 2015 the applicant made an FOI request to the HSE for a copy of all reports relating to her medical condition on file in Cork University Hospital. As she had received no response, on 5 May the applicant requested an internal review of the HSE's processing of her request. As no decision had been made in the requisite four week period set out in the FOI Act, the HSE is deemed to have made a decision refusing to grant the applicant's request. On 18 May 2015, the HSE issued a decision to the applicant granting her request. On 26 May the HSE issued its internal review decision, which affirmed its original decision. The applicant sought a review by this Office of the HSE's decision on 2 June 2015.

I note that Mr Art Foley of this Office wrote to the applicant on 16 September 2015, setting out the searches which the HSE said it carried out for records within the scope of her request, and noting that the HSE had provided the applicant with a copy of a medical report created in relation to her after her original request had been made. Mr Foley informed the applicant of his view that the HSE was justified in its decision that no further records relating to the applicant exist. The applicant has not responded to a request for further comment from this Office. I therefore consider that this this 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 correspondence between the applicant and the HSE, to correspondence between the applicant and this Office, to correspondence between the HSE and this Office, and the provisions of the FOI Act.

Scope of Review

The applicant, in correspondence with this Office, agreed to limit the scope of this review to the issue of whether further medical records relating to her exist. This review is solely concerned with whether the HSE was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act, on the basis that no further records relating to the applicant are held by Cork University Hospital.

Preliminary Matters

During the course of this review, the applicant indicated that she was dissatisfied with the manner in which the HSE processed her FOI request including the delay which she experienced in receiving her X-ray records, the manner in which the records released to her were scheduled, and the failure of the HSE to adhere to the timelines specified in the FOI Act. An assessment of the HSE's practices and procedures in compliance with the FOI Act, if it were deemed necessary, would have to be carried out pursuant to section 44 of the FOI Act, while this review, conducted pursuant to section 22 of the FOI Act, must be confined to reviewing the HSE's decision to refuse access to further records. However, it is worth noting that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

For this Office, the operative date for the purposes of considering what records, if any, are within the scope of a request is the date on which an FOI request was received. This Office's approach to the operative date was confirmed in case number 080184, Mr X v Department of Communications, Energy and Natural Resources (available at www.oic.ie)

Analysis and Findings

The HSE, at internal review, affirmed its original decision that all records within the scope of the applicant's request had been released to her. Therefore, section 15(1)(a) of the FOI Act is relevant. Section 15(1)(a) of the Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the 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 v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

The HSE, in submissions to this Office dated 31 August and 7 September 2015, provided details of the searches it undertook in Cork University Hospital in order to locate further records within the scope of the applicant's request. As I have outlined above, Mr Foley provided the applicant with details of the searches performed by the HSE together with a description of its records management policy. While I do not propose to repeat those details in full in this decision, I confirm that I have had regard to them for the purposes of this decision.

The HSE stated that it searched for records within the scope of the applicant's request through crosschecking the applicant's health record chart within Cork University Hospital with her entry on the Hospital's computer filing system. During the course of this review, following a query from this Office, the HSE discovered that one further record had been added to the applicant's file, after the date on which her original request was received. This record was administratively released to the applicant on its discovery. The HSE has stated that no records other than those which have been released to the applicant are held by Cork University Hospital.

Having considered the submissions of both parties, and the measures taken by the HSE to locate the records sought by the applicant, I am satisfied that the HSE has taken reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the HSE's decision to refuse the applicant's FOI request under section 15(1)(a) of the FOI Act, on the basis that further records do not exist or cannot be found after reasonable steps to ascertain their whereabouts have been taken, was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision 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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan,
Senior Investigator