Whether MMUH was justified, under section 15(1)(a) of the Act, in refusing access to records relating to an appointment the applicant attended at MMUH other than those already released

17 September 2020

Background

The applicant attended MMUH on 5 October 2016 for a pre-arranged medical appointment. Despite attending the appointment, his attendance was erroneously recorded as “Did Not Attend”. Subsequently upon learning of this, the applicant made a complaint to the hospital, following which MMUH amended the system to correct this error.

In a request dated 26 March 2020, the applicant sought access to all records relating to the appointment on 5 October 2016 “from the date it was devised to the present, including of those relating to their falsification and subsequent correction, and of those relating to any ensuing enquiries”. He also requested a statement of reasons under section 10 of the Act “setting out the reasons for falsifying my medical records and of any findings on any material issues of fact made for the purposes of that falsification and its consequences”.  This review is concerned solely with the applicant’s request for access to records. His request for statements of reasons has been dealt with in a separate review (Case number OIC-97431-G1M2H8).

In a decision dated 24 April 2020, MMUH refused the FOI request under section 15(1)(i) which provides for the refusal of a request where the records sought were already released, and are available to, a requester. On 11 May 2020, the applicant sought an internal review of that decision. He said that prior to his FOI request, he had not asked for or received any records relevant to the appointment. He said he previously asked for explanations regarding what he described as the falsification of medical records but as he was clearly dissatisfied with MMUH’s response, he asked for copies of relevant records under the FOI Act.

MMUH did not issue an internal review decision within the statutory time-frame. On 10 June 2020, the applicant sought a review by this Office of MMUH’s deemed refusal of his request. On 3 July 2020, MMUH issued a late internal review decision wherein it annulled its original decision. It released six records to the applicant relating to the appointment, as well as providing a statement of reasons. On 27 July 2020, the applicant informed this Office that he wanted the review of MMUH’s decision to proceed. He argued that he had not received all records of relevance to the complaint. He proceeded to describe various types of records he deemed to fall within the scope of his request.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between MMUH and the applicant as outlined above and to correspondence between this Office and both MMUH and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The applicant’s position is that he has not received all relevant record falling within the scope of his request. Accordingly, this review is concerned solely with whether MMUH was justified in refusing access to any additional relevant records other than those released on 3 July 2020.

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.

During the course of this review, this Office invited the Hospital to provide details of the searches undertaken to locate all relevant records. The Investigating Officer suggested that further relevant records should exist, given the apparent extent of the engagement between the parties. In response, MMUH agreed that upon reflection, further records within the scope of the request may exist. It said it was in the process of identifying records and locations where such records may be held.

It is clear to me, therefore, that MMUH did not take all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request and that it was not justified in refusing to release any other records apart from the six records released.  In the circumstances, I consider that the appropriate course of action to take is to annul MMUH’s decision, the effect of which is that MMUH must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with MMUH’s decision. 

Before concluding, I would like to take the opportunity to comment upon the nature of the applicant’s request. It seems to me that the request is potentially quite broad, given that it is for “all records relating to” the erroneous recording of his attendance at a hospital appointment. The difficulty with framing a request in such a manner is that it invariably runs the risk of giving rise to disputes in relation to the scope of the request.

For example, while the applicant considers that his request included “records of engagement with solicitors (including their fees)” (my emphasis), I would not generally expect a public body to regard such financial records as being captured by a request for all records relating to an issue such as the substantive issue in this case. It is important to note that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps.

It seems to me that this is a case where prior consultation between the parties as to the precise nature of the records sought might be of benefit to both parties. It would ensure that MMUH had properly considered records of relevance to the substantive issue, without having to expend scarce resources on searching for and examining records that throw no light whatsoever on the substantive issue. I believe this is particularly pertinent in the current climate. Many FOI bodies have faced significant challenges in processing FOI requests in recent months as a result of the COVID-19 pandemic, especially bodies providing front-line services such as MMUH. While the advice provided to FOI bodies by the Department of Public Expenditure and Reform is that arrangements must be put in place to ensure that requests continue to be processed to the greatest extent possible, it is noteworthy that it also encourages FOI bodies to proactively engage with requesters. (The Guidance Document issued by the Department entitled Continuity of FOI services during the COVID-19 pandemic is available here https://foi.gov.ie/continuity-of-foi-services/ ).

It seems to me that the applicant may be in a position to refine the nature of his request so that all records that might throw light on the erroneous recording of his attendance at the hospital appointment and the subsequent actions taken are properly considered for release.  This would ensure that MMUH is not required to expend scarce resources on searching for and examining irrelevant records. However, this is a matter for the applicant to decide. In the event that he does not wish to engage with MMUH beforehand, MMUH must consider the request as it was first submitted. I would add that if MMUH is considering a refusal of the request, or any part of the request, under any of the administrative grounds set out in section 15(1) of the Act, I would expect it to be in a position to comply with the full requirements of section 15, to be in a position to support that decision, and to explain its rationale for doing so in its decision letter.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of MMUH to refuse access to any additional records relating to a hospital appointment other than those already released. I direct MMUH to conduct a fresh decision-making process in respect of the applicant’s request.

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