Whether the Hospital was justified in refusing access to further records relevant to the applicant’s request under section 15(1)(a) on the ground that no further relevant records exist or can be found

6 April 2020

Background

In a request dated 26 March 2019, the applicant sought access to the following:

• Details of any biopsies taken and pathology results from same, noting two specified dates
• Details of any swabs/samples taken for microbiology between two dates and related results
• Details of two operations that took place on the same two dates specified in part 1 of the request

In a decision dated 4 April 2019, the Hospital decided to grant the request. The applicant wrote to the Hospital noting that records were missing. She said she had not received the recovery room record for the second operation or any record for a specified timeframe in connection with the first operation. On 1 May 2019 the Hospital issued a revised decision wherein it purported to grant access to all of the applicant’s medical records comprising 198 pages.

The applicant subsequently sought an internal review of that decision, wherein she argued that certain records were still missing from her file. In particular she highlighted details of biopsies and/or other medical procedures that took place on specified dates. The Hospital issued its internal review decision on 21 June 2019, affirming its original decisions on the basis that all records held had been released to the applicant.

On 21 October 2019, the applicant sought a review by this Office of the Hospital’s decision to refuse access to the further records in question. She said her name had been misspelled on a prescription the Hospital had sent to her chemist and that further records may be held under an incorrect spelling of her name.

During the course of this review, this Office provided the applicant with details of the searches undertaken by the Hospital and of its reasons for finding that no further relevant records could be found. Following correspondence with the applicant, I note Ms McCrory of this Office sought further clarification from the Hospital. I also note that the applicant has indicated that she wishes for the review to be brought to a conclusion by way of a decision.

Accordingly, I have decided to conclude my review by issuing a formal, binding decision. In conducting my review, I have had regard to the correspondence between this Office and both the applicant and the Hospital on the matter.

Scope of the Review

While the Hospital decided to release all of the records it could locate relating to the applicant, the original request was for specific records as set out in her request of 26 March 2019 as described above.

Accordingly, this review is solely concerned with whether the Hospital was justified in deciding that no further relevant records coming within the scope of that request of 26 March 2019 exist or can be found.

If the applicant considers that there are other records missing from her medical file, it is open to her to submit a fresh request to the Hospital for such records, along with any supporting evidence she might have to suggest that such records should be held by the Hospital.

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 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 searches conducted in an effort to locate the records at issue. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Hospital said that it conducted searches on its various systems and consulted with relevant staff in order to determine whether any further records were held. It said that all relevant records are held on its Database System, but it asked staff in various departments to consult their records in case any records were held that had not been entered onto the System.

The Hospital searched its main database system, and asked staff in the Histology and Microbiology Laboratories to search two information systems (WinPath and BHIS) for any records that may not have been added to the applicant’s patient file. It stated that all records located during this search were already contained on the applicant’s patient file. It further stated that it also consulted with staff in the Medical Records Department of the Hospital in case there were any records that remained for filing that had not been placed on the system. It stated that no records were located and therefore its position was that the only records held were those contained on the electronic system.

I note that the applicant referred to a prescription that was not provided to her as part of her file. Her position was that, given that this record was not provided to her, there were likely others that had also not been provided to her. In particular she noted that her name and part of her address had been misspelled on the prescription and therefore it was possible that some records were held under similar if not the same misspellings.

In its submissions to this Office, the Hospital stated that the prescription in question could not be located following further searches, and it was unsure why it had not been placed on the applicant’s patient file. It noted that the prescribing doctor no longer worked at the Hospital and could therefore not be contacted in relation to the matter. It also said it conducted searches under various specified spellings of the applicant’s name.

While it is unfortunate that the Hospital cannot locate the prescription record that clearly existed at some stage and it cannot satisfactorily explain why the record cannot be found, the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the further records sought. The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been 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 the further records sought on the ground that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. If, at some stage in the future, the Hospital locates further 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 the further records sought by the applicant on the ground that the further records 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