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

13 September 2021

Background

In a request dated 21 January 2021, the applicant submitted a request to the Hospital seeking her clinical and non-clinical records from 3 September 2019 to January 2021, including all records relating to her place on a waiting list with a named consultant and all correspondence between the consultant’s office and the Admissions Department.

As the Hospital failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request on 17 February 2021. The Hospital issued its decision on 18 March 2021, wherein it informed the applicant that it had decided to grant the request. On 17 May 2021, the applicant sought a review by this Office of the Hospital’s decision. Among other things, she said she had received no records relating to her place on the waiting list or the consultant’s correspondence with the Admissions Department.

Shortly after this Office accepted the application for review, the Hospital sent photocopies of the records to the applicant, including documentation relating to the applicant’s place on the waiting list. In subsequent correspondence with this Office, the applicant identified various types of records she considered should have been released to her, including her e-mails with the consultant’s secretary, records relating to her status on the waiting list, letters from her GP to the consultant, information relating to a validation carried out by the hospital on the waiting lists, and her correspondence with the patients’ experience office.

Following correspondence with this Office, the Hospital sent additional records to the applicant that related to her complaint to the Hospital and that had been held separately from her clinical record, and an email from the Consultant’s Office to the Admissions Department with an attached GP referral letter. It argued that all relevant records had, at that stage, been provided and it provided details of the searches undertaken to locate all relevant records.

The Investigating Officer provided the applicant with details of the searches undertaken by the Hospital for relevant records and of its reasons for finding that no further relevant 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 the Hospital 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 the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing to release any further records relating to the applicant other than those already released on the ground that no further relevant 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 the Hospital’s decision about access to additional records sought by the applicant in her 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.

In its submissions to this Office, the Hospital argued that all documents relating to the applicant’s place on the waiting list and correspondence between the Consultant’s Office and the Admission’s Department have now been provided to her.  It explained that all GP letters and clinical correspondence are filed in the patient paper chart or scanned to the EPR record and a GP letter dated 21 September 2020, which was not filed in the chart at the time of originally processing/copying the chart has since been identified and released. 

The Hospital further outlined that the validation of hospitals waiting lists is carried out by the National Treatment Purchase Fund on behalf of the Hospital and that the Hospital only keeps records of people who wish to come off the waiting list and correspondence relating to a change in the patient’s position is retained.  It stated that the Admissions Department have no documentation in relation to the applicant in respect of waiting list validation.

Following her consideration of the Hospital’s response, the applicant provided this Office with a list of information she believed to be missing or omitted from the records provided, particularly in relation to her place on the waiting lists, along with additional queries. 

That list was provided to the Hospital, following which it provided a further submission. It said it had released all relevant records relating to the waiting list. It explained that the applicant was placed on the waiting list on 3 September 2019 and the document confirming this was released. It said that according to its Patient Administration System (PAS), the applicant was contacted in January 2021 to check regarding her availability to have a procedure carried out in a private hospital and that a print out of the PAS system effecting this was also provided. It explained that its Admissions Department does not hold past waiting lists, that these lists are updated on a continuous basis, and that past information is not retained.

The Hospital further explained that the Patients Experience Office had emailed the applicant to inform her that her requests had been brought to the attention of the Orthopaedic Consultant and that although reference was made to a cancellation list, there is no function within the PAS system to hold a cancellation list and there is no such list. It added that it had carried out searches in the Medical Records Department, Orthopaedic Department, Admissions Office and Patient Experience Office and it argued that all reasonable efforts had been made to provide the documentation sought.

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 also 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. While it is unfortunate that the Hospital did not identify all relevant records during its initial processing of the applicant’s request, the question I must consider is whether the Hospital has, at this stage, taken all reasonable steps to locate all relevant records. Having regard to the hospital’s submissions, I am satisfied that it has.

I find, therefore, that the Hospital was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records apart from those released to date, on the ground that no such further 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, under section 15(1)(a) of the Act, the applicant’s request for further records relating to her apart from those already released on the ground that no further 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