Whether the Hospital was justified in refusing access to the applicant’s medical records from the period 1953-1988 on the ground that no relevant records exist or can be found

15 December 2020

Background

In a request dated 27 July 2020, the applicant sought access to his medical records dating between 1953 and 1988. As the Hospital failed to issue a decision within the prescribed timeframe, the applicant sought an internal review of the deemed refusal of his request on 26 August 2020. The Hospital issued its internal review decision on 2 October 2020, in which it refused the request under section 15(1)(a) on the basis that no relevant records existed or could be found after all reasonable searches were conducted. On 27 October 2020, the applicant sought a review by this Office of the Hospital’s decision.

During the course of the review, Ms McCrory of this Office provided the applicant with details of the searches undertaken by the Hospital in an effort to locate relevant records and informed him of her view that the Hospital had taken all reasonable steps to ascertain the whereabouts of relevant records. In response, the applicant provided some information on a medication he received but provided no further details that might be of assistance in determining whether the Hospital should have taken further steps to locate the records sought.

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 the applicant and the Hospital as set out above. I have also had regard to the correspondence between this Office and both the applicant and the Hospital on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The scope of this review is concerned solely with whether the Hospital was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant’s medical records from 1953 to 1988 on the ground that no relevant records exist or can be found.

Preliminary Matter

I wish to note at the outset that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review is confined to considering the Hospital’s refusal of the applicant’s FOI request.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

It is important to note that the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

During the course of this review, the Hospital provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. 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 stated that it conducted a comprehensive search of both its current and archived records, and was unable to locate any records relating to the applicant for the time period noted in his request, i.e. 1953-1988.

The Hospital stated that it consulted a number of departments within the Hospital and a storage company under its employ that is responsible for maintaining archived records, and all of these locations were searched for relevant records. It further stated that if the applicant had attended the Hospital’s A&E Department during that period, as opposed to a scheduled appointment, it has no A&E registers covering that time and patient names would not be recorded on the computer.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, 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 records on the ground that no 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), I hereby affirm the decision of the Hospital to refuse access to the records sought under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator