Whether the HSE was justified in its decision to refuse the applicant’s request for access to additional records from a named hospital other than those already released to her under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found

30 June 2020

Background

On 29 October 2019, the applicant submitted a request to the HSE for access to records held by named hospital relating to her, including information relating to DNA testing, information relating to her care for the period 1979 to 1989, details of an address, letters relating to her marriage, and information relating to consent provided on her behalf for the period 1979 to 1985.

The HSE failed to issue a decision on the request within the statutory time-frame.  On 25 November 2019, the applicant sought an internal review of the deemed refusal of her request. She provided further information in relation to the records she was seeking from the period 1979 to 1989 and also referred to her baptismal certificate and power of attorney documentation. As the HSE failed to issue an internal review decision within the required time-frame, the applicant sought a review by this Office of the refusal of her request on 14 January 2020.

On 16 January 2020, the HSE issued its internal review decision, refusing the applicant’s request under section 15(1)(a) on the ground that it could not locate any further records additional to those which it had already released to her on previous occasions. On 20 January 2020, the applicant provided this Office with further correspondence, indicating that she wished the review to proceed.

During the course of the review, the HSE provided this Office with details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed her of her view that the HSE was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope

The scope of this review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to additional records relating to her from a named hospital other than those already released on the ground that no further relevant records exist or can be found.

Preliminary Matter

While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.  Therefore, any information sought by the applicant has been interpreted as a request for records containing such information.

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 HSE provided details of the searches conducted in response to the applicant’s request. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, the HSE identified the various locations that were searched and outlined its view that no records had been destroyed. It said it consulted the named hospital where the applicant’s inpatient records from her first admission in 1975 to her last admission in 1990 are held. It said the hospital’s Rotadex System was searched using the applicant’s name as a search term and that her file number was identified. It explained that her file number was then used to search the hospital’s discharged inpatient, discharged outpatient, and current files. It also said the hospital’s archives for both inpatients and outpatients were searched using the applicant’s name, file number, and address as search terms.  In addition, it stated that the hospital’s microfilm records were searched.

The HSE explained that, as the applicant continues to be an outpatient, her current outpatient file is held at a relevant day centre. It noted that physical searches were carried out at the day centre within the medical records department and the designated area of archived files, using the applicant’s, maiden name, date of birth, previous addresses, file number, and date of admission as search terms. The HSE also stated that it consulted the Local Office Register of Births Deaths and Marriages and the General Register Office and the only record held relating to the applicant is her marriage certificate. 

In her submissions to this Office, the applicant provided copies of records which she believes refer to DNA tests. According to the HSE, it is not aware of any DNA tests carried out in respect of the applicant. Having examined the records provided, it appears to me that any reference to “DNA” contained therein does not relate to testing, but rather it is shorthand for “Did Not Attend” in relation to appointments. I note that the applicant’s consultant psychiatrist has met with her to discuss her queries relating to her medical files.

The general thrust of the HSE’s position is that no further relevant records exist apart from those already released. While the applicant may be unhappy with the HSE’s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist. 

Having considered the details of the searches undertaken, I am satisfied that the HSE 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 HSE was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request for further records relating to her 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.

 

Stephen Rafferty

Senior Investigator