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Case Number: 160015

Whether the HSE was justified in its decision to refuse access to medical records relating to the applicant's deceased father under section 15(1)(a) of the FOI Act on the grounds that no records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts

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

Background

On 25 September 2015, the applicant submitted a request to the HSE for access to medical records pertaining to her deceased father, who was a resident at St Brendan's Hospital before his death at the Mater Hospital in 1981.

The HSE issued a decision on 21 October 2015, stating that it could not locate any relevant records from St Brendan's Hospital. The applicant applied for an internal review of this decision and on 2 December 2015, the HSE affirmed its original decision.

On 11 January 2016, the applicant sought a review by this Office of the HSE's decision. During the course of the review, Ms Lydia Buckley of this Office provided the applicant with details of the record management practices of the Hospital as they pertained at the time and of the searches conducted by the HSE to locate the records sought. She also informed the applicant of her view that the HSE was justified in its decision to refuse her request on the basis that no records exist or could be found after all reasonable steps had been taken to locate them. The applicant indicated that she was not satisfied with this view and made a submission to this Office on the matter. I consider it appropriate to conclude this review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse access to records relating to the applicant's father's residence in St Brendan's Hospital under section 15(1)(a) of the FOI Act, on the grounds that no records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 15(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. 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 the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI 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 Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner(available on this Office's website, www.oic.ie).

In response to a request for further information by this Office, the HSE provided comprehensive details of the searches taken to locate the records at issue and of relevant records management practices as they pertained at the time. As I have outlined above, Ms Buckley of this Office has already provided the applicant with the details of these searches. While I do not propose to repeat those details, I can confirm that I have had regard to them for the purposes of this review.

In summary, the HSE stated that it conducted both manual and electronic searches of all files and locations where it might expect to find relevant records. While it was not in a position to state with any certainty that the records were destroyed, it has, however, suggested that this was possible. It stated that a decision was made in 1999 to shred all pre 1982 records which referred to mental health patients who had not been in the service for 20 years or more or where patients were deceased for 8 years. It further stated that, unfortunately, logs of such records were not retained as its record retention policy was not in place at the time.

The HSE also stated that in 2002 some records which were in storage were subject to flooding and exposed to rodent infestation. It stated that these records were in such poor condition that they could not be salvaged and were destroyed and that it was not possible, due to the poor condition of the records, to establish which records were destroyed.

It is very unfortunate that the HSE is not in a position to state, with any degree of certainty, whether or not the medical records of the applicant's father were destroyed or whether they simply cannot be found. However, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Furthermore, as I have outlined above, the role of this Office is confined to determining whether all reasonable steps have been taken by the body.

While the applicant is, understandably, dissatisfied with the HSE's response, having reviewed the steps taken by the HSE to locate the records at issue and of its explanation of relevant matters concerning records of a type such as those sought, I am satisfied that the HSE has taken all reasonable steps to locate the records sought. I find, therefore, that HSE's decision to refuse the applicant's request for records under section 15(1)(a) of the FOI Act was justified.

For the sake of completeness, I should add that during the course of this review, the HSE explained that its decision was confined to searches for records relating to her father's residence in St Brendan's Hospital. In relation to any records that might be held by the Mater Hospital, it stated that it transferred this element of the applicant's request to the Hospital given that it is a separate entity for the purposes of FOI. If the applicant has not already received correspondence from the Hospital on the matter, she may wish to contact the Hospital's FOI Liaison Officer at Mater Misericordiae University Hospital, Eccles Street, Dublin 7 or by email at [email protected].

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator