Whether the Hospital was justified in its decision to refuse access to further records relating to the applicant-�s inpatient files for the period 8 December 1991 to 31 January 1992 under section 15(1)(a) of the FOI Act on the ground that the records sought cannot be found after all reasonable steps to ascertain their whereabouts have been taken

22/11/2018

Background

On 30 April 2018, the applicant submitted a request to the Hospital for her inpatient files for the period 8 December 1991 to 31 January 1992. The Hospital failed to issue a decision on the request with the statutory time-frame. On 30 July 2018 the applicant sought an internal review of the deemed refusal of her request. On 16 August 2018, the Hospital issued its internal review decision, refusing the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. On 23 August 2018, the applicant sought a review by this Office of that decision.   

During the course of the review, the applicant provided this Office with details pertaining to the records she was seeking. The Hospital considered these details and liaised with a second hospital, to which the applicant had been transferred for a particular procedure during the relevant time-frame.  Two records were located by the second hospital and they were subsequently released to the applicant.

The Hospital also provided this Office with the details of the searches it carried out to locate all relevant records.  Ms Swanwick of this Office outlined the details of those searches to the applicant and informed the applicant of her view that the Hospital was justified in deciding that no further relevant records could be found.  The applicant indicated that she wished the review to proceed and, as such, I consider it appropriate to conclude this review by way of a formal, binding decision.  

In conducting my review, I have had regard to the correspondence between the Hospital and the applicant as outlined above and to correspondence between this Office and both the Hospital and the applicant on the matter.

Scope of Review

The scope of this review is concerned solely with whether the Hospital was justified in refusing access to further records relating to the applicant-�s inpatient files from the period 8 December 1991 to 31 January 1992, apart from the two records located and released during the course of the review.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either 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 the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, the Hospital provided details of the searches conducted to locate the records sought by the applicant. As Ms Swanwick has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Hospital identified the various locations that were searched. It stated that, as the records sought would have been in hard copy, physical searches were carried out in the majority of locations by the applicant-�s name and/or medical number. It outlined that electronic searches were carried out in two locations. It also stated that the relevant ward managers were consulted and their records searched.

The Hospital further stated that the applicant-�s chart was reviewed and it contained a note that had been inserted by a clinician on 13 July 1992 which stated -�1/2 chart lost-�. It stated that on this basis it could only assume that information was unable to be located from as early as 1992. It confirmed that the records sought would not have been destroyed and outlined its position that they do exist, but cannot be located.

It is naturally of great concern to the applicant that the Hospital cannot find her chart for the relevant period. While it is very unfortunate that the records cannot be found and while I can fully understand the applicant-�s frustration and disappointment, the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the records. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.

Having considered the details of the searches undertaken, I am satisfied that the Hospital has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant-�s request.  I find, therefore, that the Hospital was justified in refusing access to any additional records on the ground that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken.  If, at some stage in the future, the Hospital locates the relevant records, I expect it to immediately notify the applicant of their availability.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse access to further records relating to the applicant-�s inpatient files for the period 8 December 1991 to 31 January 1992 under section 15(1)(a) of the FOI Act on the ground that the records sought cannot 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