Whether the HSE was justified in refusing to release further relevant records concerning the applicant's son's engagement with its services on the ground that no further relevant records exist or can be found

22 October 2018 

Background

This review is the second involving the applicant's efforts to obtain access to records relating to her son's engagement with the HSE's Children and Adolescent Mental Health Service (CAMHS). She made her first request in August 2012, following which the HSE provided the applicant with 440 records in March 2013. The applicant was not satisfied that she had received all relevant records and sought a review of the HSE's decision. Following that review, this Office affirmed the decision of the HSE to refuse access to any additional relevant records on the ground that no such records existed or could be found after all reasonable steps to ascertain their whereabouts had been taken (Case 130116which is available on our website atwww.oic.ierefers).

On 21 March 2017, the applicant made a further request for records relating to her son. On 27 March, the HSE refused the request under section 15(1)(i) on the ground that no further records existed other than those released on foot of the original request. The applicant sought a review of that decision, following which the HSE affirmed the decision to refuse access to records already released under section 15(1)(i). However, it also identified 64 additional pages for release that it stated had been created since the original request, with a number of minor redactions from some of the records under section 37 of the FOI Act which is concerned with the protection of personal information relating to third parties. On 28 November the applicant sought a review by this Office of the HSE's decision.  

During the course of the review by this Office it became apparent that the additional records identified at internal review stage had not been issued to the applicant with the internal review decision. The HSE apologised for this administrative oversight and subsequently issued the records, with redactions, to the applicant.  

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the HSE's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the HSE on the matter. 

Scope of Review

It is important to note at the outset that this Office accepted the application for review in this case only in so far as it relates to a request for access to records that were not captured by the original request made in August 2012. As such, the review did not seek to revisit the earlier binding decision that issued in Case 130116 wherein it was found that the HSE had carried out all reasonable steps to locate records coming within the scope of the original request. Under section 22(9)(a)(iii) of the FOI Act, the Commissioner may refuse to accept an application for review if he is of the opinion that the matter to which the application relates has been the subject of another review under section 22. I note that the applicant was informed on a number of occasions in the course of this review that that the decision taken in Case 130116 would not be re-opened as part of the current review.  

Furthermore, during the course of the review, Ms Connery of this Office informed the applicant of her view that the HSE was justified in deciding that some of the redacted information in the 64 pages of records was personal information on the basis that it related to individuals other than the applicant's son who were also accessing the HSE's CAMHS. In addition some of the redacted information related to the names of public servants who had attended meetings with the applicant and were therefore known or were provided in correspondence to the applicant.  While the latter most likely did not fall within the exemption set out in section 37, as the applicant was aware of these details Ms Connery suggested that perhaps such redactions did not need to be examined as part of the current review. In response to this the applicant agreed that this Office would not examine the redactions to these records on the basis of section 37 of the FOI Act as part of this review.  

This review is therefore solely concerned with whether the HSE was justified in refusing access, under section 15(1)(a), to any further relevant records that were created after the original FOI request on the ground that no such records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.  

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

First, it is important to note this Office has no role in examining the administrative actions of public bodies. While I note that the applicant has serious concerns relating to the services provided to her son, this Office cannot examine such matters. Our remit is confined to determining whether the HSE has justified the decision made in respect of the applicant's FOI request.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

Section 15(1)(a)

As outlined above, the HSE's position is that no further relevant records coming within the scope of the applicant's request exist. Section 15(1)(a) of the FOI Act provides that a request may be refused if 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 such cases 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.

Having regard to the information provided, this Office 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.  However, it is not normally the function of this Office to search for records that a requester believes are in existence. In particular it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records. 

 
Over the course of a number of submissions to this Office, the applicant argued that the HSE should have significant further documentation relating to her son. In addition the applicant also argued that for those records which had been provided to her following her current request, considerably more detail should be set out in these records than was available. The applicant was invited to provide further details of the types of records which she believed should exist. These details were subsequently supplied to the HSE, following which the HSE made a submission providing individualised responses as to why such records had not been identified as part of the current review. In some cases the HSE submitted that no such records existed. In other cases the HSE submitted that all existing records had been made available to the applicant as part of her previous FOI request, or that the records which the applicant believed should be held fell outside the scope of her current FOI request.  

In addition the HSE provided details of its record management policies and in particular details around its policies for record destruction. In summary, the position of the HSE is that it has taken all reasonable steps to look for records of relevance to the applicant's current request, bearing in mind the searches already conducted as part of the applicant's previous FOI request. 

In its submission to this Office the HSE referred to the 2012 FOI request made by the applicant and indicated that all existing records had been supplied to the applicant either as part of the previous FOI request or as part of the current review. The majority of the 64 pages of records released to the applicant as part of the current review post-date the applicant's original FOI request which had been submitted on 23 August 2012. However a number of records are dated or appear to relate to interactions with the applicant's son prior to that date.  On this point, the HSE provided the following explanation.  It stated that following the 2012 FOI request, the original file relating to the applicant's son was stored in the Administration/FOI office and not with the treating team.  This was to facilitate access to the relevant records during the applicant's appeal to this Office. It stated that no further records were added to this original file. Separately, a number of records were created in a second patient chart. However the two files were never merged. Both the original file and the second patient file were sent to long term storage. When files were being retrieved from long term storage for response to the current FOI request, the additional records pre-dating 2012 were identified following manual searching.  

Following the previous decision of this Office and in view of the information provided by the HSE, I consider that the HSE has taken all reasonable steps to ascertain the whereabouts of any further relevant records.   I find, therefore, that section 15(1)(a) of the FOI Act applies.

I appreciate that the applicant is likely to be unhappy with this decision.  However I would once again like to take the opportunity to emphasise that the function of this Office is limited to reviewing the decisions of the HSE in this case and determining if they were justified under the provisions of the FOI Act. I appreciate that the applicant appears to have a considerable difference of opinion with regard to many aspects of the HSE's interaction with her son over the course of many years. However, as set out to the applicant in both the previous decision from this Office and in recent correspondence, this Office has no remit to investigate matters in relation to the assessment, diagnosis or treatment of her son and in particular to adjudicate on the appropriateness or otherwise of such matters.  

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 to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.   

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