Whether Tallaght University Hospital was justified in refusing, under section 15(1)(a) of the FOI Act, access to additional medical records relating to the applicant’s son on the ground that no further relevant records exist or can be found

17 May 2021

Background

In a request dated 3 February 2020, the applicant submitted a request to TUH seeking “all records, notes, reports, lab results, x-rays, medications, scans and surgical procedures pertaining to all A & E, outpatient appointments and hospital admissions from November 2019 to February 2020 for [his] son. He also requested “… a list of each date and which staff was responsible for his diagnoses, treatment and care”. On 21 September 2020, TUH provided the applicant with relevant records.

On 16 October 2020, the applicant requested an internal review of TUH’s decision on the ground that certain specified records had not been released to him. TUH issued its internal review decision on 23 October 2020, wherein it released a number of additional records. On 27 January 2021, the applicant sought a review by this office of TUH’s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the searches undertaken by TUH for relevant records and of its reasons for finding that no further records exist. The applicant made a submission in response.

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 submissions made by TUH and by the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether TUH was justified, under section 15(1)(a) of the FOI Act, in refusing to release any further medical records relating to the applicant's son on the basis that he has been provided with all records and no further records exist or can be found.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comment. The remit of this Office does not extend to examining the manner in which public bodies perform their functions generally, to investigate complaints against public bodies, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies. As noted above, this review is confined to considering TUH’s decision about access to further medical records sought by the applicant in his FOI request.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in a case such as this 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of this review, TUH 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 summary, TUH confirmed that to the best of its knowledge all documents falling within the scope of the applicant’s request have been provided to him. It explained the process of the searches it carried out to locate the records and listed all relevant Departments within TUH that had been contacted and checked all clinical letters downloaded from its electronic system. All searches were carried out on the electronic Patient Information Management Systems, the Paediatric Emergency Department Systems using all search mechanisms and systems including names with different spellings and dates. Furthermore, TUH understood that all records relating to notes, reports, lab results, x-rays, medications, scans and surgical procedures pertaining to all A&E, outpatient appointments and hospital admissions within the scope of this review had been provided to the applicant and confirmed there are no other areas where patient charts are stored by TUH in any format other than those already searched.  It carried out all of the necessary searches and concluded that all areas had been fully investigated and there are no other locations or records outstanding.  

Following the results of the above searches that no further documents were forthcoming, the applicant expressed dissatisfaction and provided this Office with a list of what he believed was still missing or omitted from the records, along with additional queries.  These lists were provided to TUH for its consideration and subsequently, TUH stated that although it had provided all records located throughout its extensive searches of its system it would, as a gesture of goodwill to the applicant, conduct a second search of all locations again in an effort to locate any further records and duly noted the missing records which had been identified in the applicant’s submissions. 

Following this second search, TUH again confirmed that it had uncovered no additional or new material and provided the results to the applicant by way of letter which included a schedule and copy of records which were previously released.  Included in these documents and following a query from the applicant, one record had been located by him which had not been previously been provided although TUH confirmed this was missed during an error in the scanning process granted it had been intended to be provided previously as reference had been made to it as part of the initial release of documents.  Further queries were raised by the applicant relating to medical records which he had received from his GP which had been sent from TUH but had not been provided to him.  TUH stated that communications of this type between TUH and GPs is performed through The National Healthlink System which is managed by the HSE directly and searches cannot be carried out on the TUH system as it is outside of its control. In another instance, the applicant stated his GP supplied him with a discharge letter of 15 November 2019, which he stated had not been provided and TUH explained that discharge information is managed by the patient’s team and confirmed it did not have a copy of a letter for that date but believed that although there is a document on page 15, this could be mistaken for a discharge letter, which it is not. Finally, the applicant referred to a record dated 21 November 2019, which mentions a patient being admitted with picture of appendicitis but that no imagery was released to him.  TUH said that the reference ‘admitted with picture of appendicitis’ is not referencing a physical image or scan but language that refers to an impression or picture based on the symptoms when the patient presented to the Emergency Department but it does not refer to an actual image.

Apart from the record that was overlooked due to a scanning error and which has now been provided to the applicant, in essence TUH’s position is that no further relevant records can be found or do not exist. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the applicant believes that the record ought to exist. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found.

Although it is unfortunate that the TUH cannot locate any further relevant records, it would appear to me that having conducted two full searches of its systems that TUH have exceeded what is normally required of it in an effort to assist the applicant, even going so far as to provide the applicant with advice of a further service that he may wish to avail of as he had raised other matters which were outside the remit of the release of information team in TUH.  Having considered the details of all of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the TUH 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 TUH was justified in refusing access to further records on the ground that no such 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 TUH to refuse the applicant’s request for further medical records relating to his son on the basis that no further 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