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Case Number: 160050

Whether the HSE was justified in its decision to refuse access to records relating to the applicant on the grounds that no records exist or can be found

Review: 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 13 August 2015, the applicant made a request to the HSE for medical records relating to him from St Finbarr's Hospital and the Sacred Heart Hospital, both located in Cork, and Foynes Hospital, Limerick. The applicant sought medical records dating from his birth on 19 August 1976 to 21 June 1978. The request in relation to the Sacred Heart Hospital was transferred to the Child and Family Agency (TUSLA), which holds the files from that hospital.

On 28 August 2015, TUSLA part granted the request in respect of records from the Sacred Heart Hospital. On 21 August 2015, the HSE part granted the request in respect of records from Foynes Hospital. In its decision dated 9 December 2015, the HSE refused the applicant's request for medical records from St Finbarr's Hospital on the grounds that no relevant records exist or can be found. The applicant sought an internal review of the decision in respect of St Finbarr's Hospital and on 14 January 2016, the HSE affirmed its decision.

On 25 January 2016, the applicant sought a review of the HSE's decision in relation to St Finbarr's Hospital. Ms Lydia Buckley of this Office contacted the applicant on 22 March 2016, and informed him of the information provided by the HSE in respect of the record management practices of St Finbarr's Hospital, as they pertained at the relevant time, and of the searches undertaken by the HSE to locate relevant records. She also informed the applicant of her view that the HSE was justified in deciding that no further relevant records exist or can be found and invited him to make a submission, which he did. I now consider it appropriate to bring this review to a close by means 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 HSE was justified in its decision to refuse the applicant's request for his medical records from St Finbarr's Hospital on the grounds that no relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

It should be noted that the applicant did not seek a review of the decision of the HSE in respect of Foynes Hospital, or the decision by TUSLA in relation to the Sacred Heart Hospital. Accordingly, these aspects of the applicant's request are outside the scope of this review.

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. The Commissioner's role in cases 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. 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 FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

It should be noted that this Office may conclude that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, this Office is unlikely to require a public body to continue searching indefinitely for these records.

In response to a request for further information by this Office, the HSE provided details of the searches taken to locate the applicant's medical records and information relating to 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. 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. The locations that were searched included the Medical Records Department of the Cork University Maternity Hospital, where the maternity records from St Finbarr's are kept, the Medical Records Department of the Cork University Hospital, and all off-site file storage facilities. The HSE stated that it could not locate any medical records relating to the applicant.

During the course of this review, the applicant provided this Office with a number of medical records which appeared to be from St Finbarr's Hospital. These records were obtained through the applicant's request for records to TULSA, which located the applicant's medical records from St Finbarr's Hospital in the files from the Sacred Heart Hospital. These records were forwarded to the HSE in case they might assist it in locating relevant records from St Finbarr's Hospital. The HSE stated that, regrettably, these records did not help it find any relevant records.

The HSE has accepted that the applicant had contact with St Finbarr's Hospital and that relevant medical records existed. However, its position is that it cannot now locate these records. While the HSE was not in a position to definitively state that the records were destroyed, it has suggested that this was possible. It noted that a decision was made by St Finbarr's Hospital in 1985/1986 to destroy older medical records from the 1970s, in order to make room for more recent files. It further stated that, unfortunately, logs of such records were not retained as the record retention policy of the HSE was not in place at the time.

It is very unfortunate that the HSE is not in a position to definitively state whether the relevant medical records 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. Having reviewed the steps taken by the HSE, I am satisfied that the HSE has taken all reasonable steps to locate the relevant records. I find, therefore, that HSE's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

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