Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to a number of her late fiancé’s GP medical records for the period 2005 to the date of the request other than those released on foot of the request, on the ground that no further relevant records could be found

8 December 2021

Background

In a request dated 9 February 2021, the applicant sought access to a copy of her late fiancé’s GP medical records, starting from the date he transferred to a named GP’s practice. In its decision letter dated 9 April 2021, the HSE referred to further communications with the applicant wherein she changed the scope of her request to include records held by the previous GP, from January 2005 onwards. It decided to part-grant the request. It refused access, under section 15(1)(a) of the FOI Act, to certain records relating to the dates between 2005 and 2015 on the ground that they could not be located. It also redacted certain third party personal information from the records released under section 37 of the Act.

The applicant sought an internal review of the HSE’s decision on the ground that records dating between 2005 and 2015 concerning the deceased’s attendances at the earlier GP should exist. On 30 July 2021, the HSE affirmed the refusal of the additional records sought. On 10 August 2021, the applicant sought a review by this Office of the HSE’s decision.

During the course of the review, the HSE provided details of the searches undertaken to locate the relevant records and those details were provided to the applicant with an invitation for her to make a submission of her own. The applicant did not provide a 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 correspondence between the applicant and the HSE as set out above and to the correspondence between this Office and both parties on the matter. 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 HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request for a copy of her late fiancé’s GP medical records for the period 2005 to the date of the request, other than those released on foot of the request.

 

 

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 role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. We 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.

As I have outlined above, the HSE provided this Office with details of searches it undertook in an effort to locate relevant records. The missing records relate to the period 2005 to 2015. In its submissions, the HSE said the deceased attended the first GP from 1 January 2005 to 11 March 2015, following which he transferred to a second GP from 12 March 2015 to 15 August 2016. The HSE said he continued to attend the second GP’s clinic with another member of that clinic from 17 August 2016 until the date of his death.

The HSE said it consulted with the first GP who has since retired. That GP explained that he held no relevant records. He said he retired in 2016 following which all of his patient files were transferred to a third GP but at that stage, the deceased had already transferred to the second GP.

The HSE said it contacted the third GP to see if the records of the deceased had been transferred to him in error. The third GP said that the applicant had attended him for one consultation only in 2005 but not since then. He said he also had on file two letters regarding the transfer of the deceased’s medical notes to the clinic. The first, dated 2 March 2015, comprises a letter from the clinic to the first GP containing the signed consent of the deceased for the transfer of his medical notes to the clinic, while the second, dated 4 March 2015, comprises an acknowledgement by the first GP of receipt of that signed consent and it states that the medical notes are attached.

The clinic, to whom the deceased had transferred, confirmed that it holds a copy of the request it had sent to the first GP on 2 March 2015 for previous GP notes but that there is no record of the notes having been received by the clinic. It said it does not have a copy of the response dated 4 May 2015. The clinic informed the HSE that it has an in-practice IT patient records management system. It said its policy in respect of storage and scanning of records is as follows:

 

• A member of the Medical team reviews notes received from previous GP of new patients to the practice
• The patient’s electronic record is updated, same is noted on file
• If the file consists of 20 pages or less it will be scanned to patient’s electronic record in full and the paper file is then securely shredded on the premises
• If it is a larger paper file the medical staff will indicate if records/reports should be scanned into file, if so these are added to the electronic record
• The file is then left for collection by the patient or the clinic arranges to securely store and archive the records should the patient wish. The action is noted on file

The clinic said that on receiving notification of the FOI request, it searched its patient records database and located the deceased’s file. It said the records on the file date from 11 February 2015 to 3 September 2020 and that it holds no records outside of those dates. It said it also contacted its secure document storage company who confirmed that they do not hold any archived file for the deceased.

The clinic added that there is no record on file to suggest that it followed up with the first GP when it did not receive a response to its request of 2 March 2015. It said that it would only follow up with a patient’s previous GP if further details were required following consultation with the new patient. It said the records show that a summary of medical history was taken from the deceased on 12 February 2015 in line with its standard practice.

The letters held by the third GP in this case clearly confirm that the first GP did, indeed, hold relevant records relating to the deceased at some stage. Indeed, the letters also suggest that the first GP sent the medical notes as requested, given that the two letters were the only records relating to the deceased that he transferred to the third GP on his retirement. Nevertheless, there is nothing on the file held by the clinic to suggest that it ever received the records. Given that it located a copy of the request it issued on 2 March 2015, it is reasonable to assume that it would also hold a copy of the response dated 4 March 2015 if it had, indeed, received the records.

It is unfortunate that none of the parties involved are in a position to throw any further light on the possible whereabouts of the missing records. However, while it is very disappointing that records known to have existed cannot now be found, it is important to note that the question this Office must consider is whether all reasonable steps have been taken to locate the records. Section 15(1)(a) of the Act is an express acknowledgement of the fact that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. The FOI Act does not require absolute certainty as to the existence or location of records, as situations may arise where records are lost or simply cannot be found. There are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

While I can fully understand that the applicant will be very disappointed with my finding, it seems to me that, taking into account the details of the searches actually undertaken by the HSE in this case, it has taken all reasonable steps in an effort to ascertain the whereabouts of the relevant records. Accordingly, I find it was justified in refusing access, under section 15(1)(a) of the Act, to the medical records of the deceased relating to his attendances at the first GP on the ground that the records sought cannot be found. I would add that, should the HSE locate the missing records at any stage following this review, it should arrange for the immediate release of the records to the applicant.

 

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse, under section 15(1)(a) of the FOI Act, access to further records relating to the applicant’s request for her late fiancé’s GP medical records for a specified period.

 

 

 

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