Whether the HSE was justified in refusing access to records from a named County Home relating to the applicant’s grandmother and mother

3 October 2019

Background

The applicant made an FOI request to the HSE on 23 September 2018 for copies of records from a named County Home (the Home) relating to her grandmother and mother. Her mother was born in the Home on a particular date in 1923. The HSE’s decision of 11 February 2019 refused the request under section 15(1)(a) on the basis that it had carried out reasonable searches and the records cannot be found. The applicant sought an internal review on 3 March 2019. I have taken the HSE’s letter to the applicant of 28 March 2019 as having affirmed its refusal of her request. On 15 June 2019, the applicant applied to this Office for a review of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the HSE was justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act.

It cannot examine, make findings on or have regard to how the HSE handled the applicant’s request. However, I note that the HSE wrote to the applicant on 8 February 2018 to seek further time to carry out searches. This was over four months after the applicant had made her request. The HSE issued its decision on her request three days later. The applicant says that this indicates that the HSE carried out insufficient searches. This Office’s Investigator asked the HSE to explain what had happened.

The HSE says that it wrote to the applicant on 8 February as a courtesy because of general delays in dealing with FOI requests arising from staff shortages. It says that when the decision maker received details of searches carried out, she immediately issued a decision letter to the applicant, which happened to be on 11 February 2019.

Section 13 of the FOI Act requires FOI bodies to give a decision on an FOI request to the requester no later than four weeks after the request was received. Section 14 enables FOI bodies to extend that timeframe in very limited circumstances, such as because of the volume of records covered by the request. Section 19(1) of the FOI Act provides that a request for records is deemed to have been refused where the FOI body has not given its decision to the requester before the expiry of the relevant timeframe. Furthermore, section 12(2) of the FOI Act requires an FOI body to acknowledge receipt of an FOI request within two weeks of such receipt and to include in this acknowledgment a summary of section 19 and information regarding the requester’s rights of review under the FOI Act.

I have not established whether the HSE complied with the requirements of section 12(2) in this case.  However, I note that the letter of 28 March 2019 does not amount to a proper internal review decision that complies with the requirements of section 21(5) of the FOI Act. It does not say whether the HSE is affirming its decision on applicant’s request, or say why it was being refused or refer the applicant to the provision of the FOI Act that it was relying on accordingly. Neither does it contain details of the applicant’s right of appeal to this Office as required by section 21(5)(f) of the FOI Act.

I appreciate that the HSE, and other FOI bodies, face resourcing challenges in various areas. I have no reason to question the HSE’s position that when the applicant’s request was made there were insufficient staff available to deal with her request in accordance with the timeframes set out within the FOI Act. I also note that both the HSE’s decision and letter of 28 March 2019 contain information that, in the spirit of FOI, is intended to help the applicant find out more about her family.

However, the HSE as a corporate entity has been subject to FOI since 1998. It should be well aware that the Act does not provide for it to seek extensions of time for making decisions or to otherwise fail to meet its requirements under the FOI Act because of resource problems.

Findings

The Commissioner’s review of a public body's refusal of records under section 15(1)(a) assesses whether or not the body is justified in claiming that it has taken all reasonable steps to locate records covered by an FOI request or that the requested records do not exist. I should explain that the Commissioner does not consider section 15(1)(a) to require a public body to continue searching indefinitely for records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).

The HSE says that it has taken reasonable steps to look for records covered by the applicant’s request but that it is unable to find records for any former residents of the Home dating from before 1927. This Office’s Investigator asked it to describe the searches it had carried out and to comment on other matters, such as what government bodies would have been responsible for the Home in the 1920s and what bodies might now hold records from that time.

The HSE says that the Home is a former Workhouse dating from 1840, which was converted into a County Home in the early 1920s. It is now a nursing home. It has been under the remit of a variety of government bodies i.e. the Department for Local Government and Public Health (December 1922 to 1947), the Department of Health (1947 to 1970), the Western Health Board (1970 to 2005) and the HSE (2005 to date).

The HSE says that “in-house Registers” are the main and only records it holds that were kept by Mother and Baby Homes and Workhouses. It describes these as large books containing limited amounts of personal information regarding individuals who entered Mother and Baby Homes and Workhouses, such as name, address, date entered, date left, etc. The HSE says that these Registers are normally held within the former County Homes, often in the Director of Nursing’s office or file storage areas.

The HSE says it carried out physical searches in the nursing home to try to find the “in-house Register” for the period circa 1923. It says that it looked in the Director of Nursing’s Office, other offices in the building and in the general file storage area where such records are normally held. It found 25 Registers, all located together in the same storage area, with entries starting in 1927.

The HSE says that searches were previously carried out for the Home’s Registers arising from the 2015 Commission of Inquiry into Mother and Baby Homes (the Inquiry). It says that the Inquiry asked the nursing home if it held any records relating to services provided to mothers who may have been accommodated and who were resident or receiving services from the home between 1922 and 1998. In 2017, the nursing home provided the Inquiry with a list of the Registers that were found to be held for that period. It has given this Office a copy of the list, which I note describes Book 1 as covering the period from 1927 to 1929. The HSE says that this indicates that no book was found to be held for the period prior to 1927. It also says that the Registers were not moved from their original location for the purpose of the Inquiry. I have no reason to dispute this and in this regard, I note that the list says that the books can be “viewed at any time” by the Inquiry.

The HSE says that it made enquiries of the Director of Nursing in the nursing home and the Social Care Department in Community Healthcare West and contacted staff who were involved in the Inquiry to establish if records for the early 1920s were found or removed from the nursing home. It also obtained a list of non-personal records that the nursing home handed over to the County Library at some point in the past. The Library is run by the County Council, which is a separate FOI body to the HSE. According to the HSE, the Library’s position is that it holds historic records relating to the management of the Home, including Minutes of monthly meetings held by the Board of Guardians for the Poor Law Union of the area. The HSE provided this Office with a copy of the list. I note that it does not appear to include “in-house Registers” or registers of personal information dating to the early 1920s.

The HSE says that Minute books of Poor Law Unions, such as those that are held by the County Library, have a reasonably good survival rate. It says that, however, it is unusual for other records from the early 1920s to survive in quantity, if they ever existed. At this time, the Civil War was ongoing and the Workhouse was being restructured to function as a County Home. The HSE says that records from this time could have been lost, destroyed, or damaged and then later destroyed. It says that there are no records in the nursing home to indicate whether Registers existed for the period before 1927, or what may have happened to them. It also says that there is nobody working in the nursing home at present with an historic knowledge of what may have happened to any older Registers that may have existed.

This Investigator also asked the HSE to describe the electronic searches that its decision said were carried out. The HSE says that the nursing home holds no historic records in electronic format and that the Registers it holds were never transferred into such a format. In such circumstances, it is not at all clear to me why the HSE’s decision says that electronic searches were carried out in relation to this particular request. However, I have no reason to dispute that the HSE does not hold electronic records relating to residents of the Home in the early 1920s.

The Investigator wrote to the applicant on 5 September 2019 and gave her details of the HSE’s description of her searches. This Office has not received any comments from the applicant in response.

It seems to me that any record management practices that there may have been in Workhouses/Mother and Baby Homes/County Homes in the 1920s would be very different to current standards. I have given careful consideration to the HSE’s description of the kinds of records it holds from that time and the searches it says it carried out for records covered by the applicant’s request. I am unable to unable to identify further specific searches that it should carry out. While I appreciate how important it is to the applicant to obtain the records she is seeking, I do not believe that the FOI Act requires me to direct the HSE to indefinitely carry out general searches for such records.

I am satisfied that the HSE is justified in refusing the applicant’s request on the basis that it has taken all reasonable steps to search for the requested records and I find that section 15(1)(a) of the FOI Act applies. In making this finding, I expect that, if further Registers or records containing relevant information were to come to light at any stage, the HSE would inform the applicant and make a decision on them in accordance with the requirements of the FOI Act. For clarity for the applicant, this does not equate to any direction on my part for the HSE to grant access to the records concerned, which is not a matter that I have considered since that would depend on the content of any records found. However, while the HSE is unable to say categorically if records dating from before 1927 have been destroyed, I should also say that I agree that this is very probable.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s refusal of the applicant’s request under section 15(1)(a) of the FOI Act.

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.

 

 

 

Elizabeth Dolan

Senior Investigator