Case 99265

Request to the former Eastern Health Board for records relating to the requester's late sister - whether further records exist - section 10(1)(a) - whether the Board's decision to provide access to entries in record books by way of inspection, rather than by way of providing the photocopies requested, is in accordance with the provisions of the FOI Act - section 12(2)(a) - whether records relating to staff who attended the requester's late sister on the night of her death in Dundrum Central Mental Hospital relate to personal information about those staff - section 28(1)

Case Summary

Facts

The requester's sister died in the 1970's in the Central Mental Hospital, Dundrum and the requester made a FOI request for her records, which comprised 46 separate elements. The Hospital decided to release a copy of her hospital medical file, and copies of correspondence between the requester and the Hospital since 1987. The hospital offered to let the requester inspect the daily record books held at the hospital rather than copy them, due to the size of the books, their physical layout and the fact that the books also contained entries relating to other patients. It said no other records existed in relation to the requester's sister. It also refused to release records which might reveal whether the staff, who attended his late sister on the night of her death, are still alive.

Decision

The Commissioner found that although there was evidence of the existence of other documents, the searches conducted by the Hospital had been reasonable and he upheld its decision to refuse to release such further records on the grounds of section 10(1)(a). In respect of section 12(2)(a) of the Act (which allows for a public body to provide access to records in a form, other than that requested, where to provide an alternative form of access "would be significantly more efficient"), he found that, although the Act does not expressly identify to which of the parties (requester or public body) the test of "significantly more efficient" is meant to apply, regard should be had to the requirements of both parties. The Commissioner found information concerning whether the staff of the Hospital, who attended the requester's late sister on the night of her death, are still alive, to be personal information about those staff.

Date of Decision: 18.06.2001

Our Reference: 99265

18.06.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of the former Eastern Health Board (the Health Board) on the FOI request signed by you on 6 November 1998 and received by the Health Board on 4 February 1999. Your request was for records held by the Central Mental Hospital, Dundrum relating to your late sister, Y. In accordance with section 34 of the FOI Act, I have now completed my review of the Health Board's decision in this case. In carrying out this review, I have taken into account submissions made both by yourself and by the Health Board.

Background

Your request for records comprises 46 elements. I have detailed these elements, and the Health Board's position in relation to each of them, in an Appendix to this letter. I enclose also, for ease of reference, a copy of your original request.

It is worth pointing out that, as the records you requested relate to your late sister, the FOI Act does not confer on you an automatic right of entitlement to access these records. The Act and related regulations give some discretion to a public body in a situation where the records sought relate to personal information about a person who has died and where the requester is a close relative of the deceased person. In relation to your request, the Health Board decided to exercise this discretion in your favour and I accept that this, in all the circumstances, was the correct line to follow. In one respect, however, the Health Board has decided that relevant records should not be released. This relates to your request (item 45 in the attached Appendix) to be told whether the nurses and doctor who attended your sister on the night of her death are still alive. (The identities of the staff concerned have already been revealed in records released to you.) In correspondence with my Office, and notwithstanding that certain information relating to staff in the Central Mental Hospital has been released to you, the Health Board has argued that such information is not releasable under the FOI Act.

The decision made by the Health Board on 1 March 1999 was to provide you with a copy of the hospital medical file and copies of correspondence between yourself and the Central Mental Hospital since 1987. The Health Board also repeated an offer, which had been made to you in earlier correspondence, to allow you administrative access to the daily ward records (referred to in correspondence as the daily record books) held at the hospital. The Health Board claimed that it was not possible to photocopy the relevant entries from these books due to their physical size and layout and because of references to other patients. By administrative access the Health Board meant that you could inspect the books in person at the hospital. In effect, the decision of the Health Board in relation to the daily record books is that relevant extracts relating to your sister should be released to you but not in the manner requested by you. Finally, the Health Board conclusion was that no further records in relation to your sister were available.

Following the commencement of this review, and in some instances in response to enquiries made by my staff, the Health Board located and forwarded to you copies of other records which came to light during further searches. These additional records included:

• An extract from a Patient's Property Account showing an entry in relation to your sister
• A series of entries from Special Report Books
• Extracts from a medication book with details of drugs administered to your sister between June and October 1973
• Transcript of a telephone call made by you to the hospital on 29 December 1973.

Elements of your request which related to the involvement of the Inspector of Mental Hospitals have been dealt with separately as part of your FOI request to the Department of Health and Children. The request to the Department resulted in the provision of a significant number of records relating to your late sister. The Department's decision on your request was the subject of a separate review decision by me - see my letter to you of 5 April 2001 (my reference is Case No. 99059).

You have expressed yourself dissatisfied with the records which have been made available to you, particularly in relation to the clinical file. You have also said that you believe it should be possible to photocopy the entries in the daily report books and forward these to you.

Scope of Review

Scope

The question of records relating to contacts with the Inspector of Mental Hospitals does not fall within the scope of this review, for the reasons already given. Many of the individual items in your request consist of questions rather than requests for specific records. The Health Board has taken the view that these items arise under FOI only to the extent that there may be records available which may provide answers to these questions. I accept that this is the correct approach to take and, accordingly, this review is concerned solely with records, whether they exist and if so to what extent and in what manner they should be released.

Furthermore, it is important to clarify that the FOI Act does not provide a remedy for instances in which records should have been kept but, for whatever reason, have not been kept. As Information Commissioner I have no role in relation to specific instances in which a public body has failed to keep adequate records even where such a failure may be in breach of statutory requirements. Neither can I, as Information Commissioner, in any way deal with any other breaches of statutory duty on the part of the public body in question. In the present case, my role is confined to deciding the three specific issues outlined below:

• whether the Health Board holds other relevant records which have not yet been found and made available to you - this is referred to below as the "search issue";
• whether the decision of the Health Board to provide access to the daily report book entries by way of inspection, rather than by way of providing copies, is in accordance with the provisions of the FOI Act;
• whether the decision of the Health Board, not to release records which might reveal whether the staff who attended your sister on the night of her death are still alive, is in accordance with the provisions of the FOI Act.

Process of Review

Staff from my Office visited the Central Mental Hospital, Dundrum to establish details of the hospital's record management practices and the nature of the searches undertaken for the records in this case. The records held at the hospital, including the daily report book, were viewed by my staff. Questions which you raised in your submissions to me were also put to the Health Board.

In relation to record management practices, the Health Board points out that it took over the running of the Central Mental Hospital in 1971, prior to which time it had been the responsibility of the Department of Health. The record system in place at that time was inherited by the Health Board. It has since been replaced by a different system. According to the Health Board, old records are stored in an unordered manner in a large basement area, extensive searches of which had already been conducted prior to the meeting with my staff.

In correspondence with my Office you pointed out that the Mental Hospitals (Officers and Servants) Order, 1946 provides for the appointment of various staff including a resident medical superintendent, assistant medical officer, head nurses and head night nurses (male and female). These staff were required by Regulation to keep proper records of the physical and mental condition of patients, any incidents occurring etc. In discussing this with the Health Board it said that it appears some of the terms of this Regulation were not implemented in the case of the Central Mental Hospital. In particular, it appears there was no nursing staff in the hospital during the period of your sister's stay there. The Health Board letter to you of 12 August 1999 confirmed this point.

The Health Board has accepted that the clinical file in relation to your sister would not be considered adequate by present day standards. Dr. Smith (Medical Director, Central Mental Hospital) acknowledged this in his letter to you of 12 October 1998. The Health Board expressed the opinion that the paucity of medical reports may stem from the fact that the emphasis in the hospital at the time (i.e. the early seventies) "was more on custody than it is now." The Health Board also noted that the daily report books supplement the clinical file in that these books have page entries for each day of each patient's stay at the hospital. At the same time it acknowledged that certain documents, which might be expected to be included among the hospital's records, were not found. These documents are: (1) a copy of the Ministerial Order of [date] directing the transfer of your sister to the Central Mental Hospital and (2) the accompanying covering letter ; (3) the notification of [date] by the Clinical Director of the Central Mental Hospital to the Inspector of Mental Hospitals and (4) the letter of [date] from the hospital to the Coroner's office (which is referred to in the letter of [date] from the Coroner to the hospital). You received copies of items 1, 2 and 3 separately from the Department of Health. In the course of these contacts with the Health Board it also emerged that some of the daily report records for the period of your sister's stay in the hospital are missing. According to the Health Board, the records for the following periods have not been found: 31 March 1972 - 1 April 1972, 26 and 27 September 1972, 15 October 1972 - 3 May 1973.

The inspection of one volume of a daily report book carried out by my staff supported the Health Board's view that these ledger-type books, which run to several volumes, are not amenable to photocopying due to their physical size and the fact that entries concerning your sister are contained on pages with entries for other patients. The Health Board suggested, as an alternative to viewing the daily records, that entries for 12 dates (to be specified by you) in relation to your sister be transcribed and sent to you. This suggestion was put to you in the letter of 8 September from Ms. Doyle of my Office. You replied that, while you would be interested in obtaining transcripts of the daily records relating to your sister for the 12 days prior to the removal of her body from the hospital, you could not accept anything less than all the records relating to her.

Following the meeting with my staff, I understand the Health Board undertook further searches for relevant records including, in particular, records relating to your sister's dental history and personal effects, which had not been specifically sought before then. These further searches, as already outlined above, resulted in the discovery of some additional records, copies of which were sent to you. These searches failed to show dental records or any further clinical/medical material; the record which was found of drugs administered to your sister does not include any details for the period before June 1973. In relation to your sister's property, the Health Board says only one entry of relevance has been found in the records of Patient Property Accounts.

Findings

The "Search" Issue

As already outlined, a considerable number of relevant records has been found by the Health Board during the period since you applied to my Office. Copies of these additional records have been provided to you. The Health Board has refused access to any further records on the basis that extensive searches have been undertaken which have failed to locate further records. The Health Board relies on section 10(1)(a) of the Freedom of Information Act, which provides as follows: "10.(1) A head to whom a request under section 7 is made may refuse to grant the request if (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ...."

The issue which I must address here is whether the Health Board's decision to refuse access to further records, pursuant to section 10(1)(a), is justified. I have found that there can be some misconceptions about my role in cases of this nature where the public body has decided that the records do not exist or cannot be found. Some applicants may expect me or my officials to carry out a search for the records in question. However, I see my role in these cases as one of reviewing the decision of the public body and deciding whether that decision was justified.

I accept that there is evidence of documents which either were sent to or originally emanated from the hospital and which have not been located. These include, in particular, the Ministerial Order and the letters from the hospital to the Inspector of Mental Hospitals and the Coroner, mentioned earlier. The fact that there is evidence of the existence of these documents, and that they were not among the papers provided by the Health Board, gives rise to the possibility that these and additional documents may still exist. In addition, I am aware that you believe the hospital's file to be lacking in detail in comparison with records from the hospital in which your sister was a patient prior to her transfer to the Central Mental Hospital.

I note that there is no central registration system for a large number of documents stored in an unorganised manner at the Central Mental Hospital and this factor has hampered searches. However, I accept that the Health Board has spent a considerable amount of time in searching for records relating to your request and I am of the opinion that these searches conform to the requirements of section 10 of the Act i.e. that reasonable steps be taken to ascertain the whereabouts of the records requested.

Taking an overview of your request, which contained 46 separate elements, it would seem that you have received a large number of the records which you requested. I am of the opinion that some of the records, which are recorded in this list as not located, may never have existed and others may be available in the daily record books. In the light of the above, it is my finding that the decision to apply section 10(1)(a) of the FOI Act to your request was justified.

Manner of Access to Daily Report Book

The issue for decision here is whether the Health Board is correct in its decision to refuse to provide copies of the relevant entries from the daily report books and to offer, instead, access by way of inspection on Health Board premises.

The question of the manner in which access to records should be provided is dealt with at section 12 of the FOI Act. This section provides that a form of access, other than that specified by the requester, may be given where particular circumstances apply. In the present case the Health Board has not made a specific argument under section 12 but I feel it is safe to assume that it intended to rely on section 12(2)(a). This allows a public body to provide access to records in a form other than that requested where to provide an alternative form of access "would be significantly more efficient". While it may be physically possible - albeit with considerable effort - to make copies of the daily report book entries, I am satisfied (from the examination of these books by my staff) that to do so would prove a highly inefficient form of access from the Health Board's perspective. For the Health Board, the provision of access by way of inspection is undoubtedly significantly more efficient than access on the basis of copies. However from your perspective, and bearing in mind that you spend considerable periods of time in the UK, I accept that access by way of inspection may not be efficient. Although the Act does not expressly identify to which of the parties (requester or public body) the test of "significantly more efficient" is meant to apply, it seems to me correct that regard should be had to the requirements of both parties. This suggests, in the circumstances of this case, that some compromise arrangement may be the correct approach.

I note that, as an alternative to being granted access to these records by way of inspection, the Health Board offered to provide you with transcripts of the daily report entries for any 12 days of your choosing. While you refused this offer, you made it clear you were particularly interested in obtaining transcripts of the daily records relating to your sister for the 12 days prior to the removal of her body from the hospital. However, I am fully aware that you did not accept this as a final settlement of your request.

Having considered the matter carefully, I find that photocopying the relevant pages would be difficult and inefficient from the Health Board's perspective. This is especially the case given that the pages on which information relating to your sister was recorded also contain entries relating to other patients. This latter information is exempt from release under the provisions of the Act and I understand you accept you should not receive such information. Whereas I find that provision of access by way of inspection "would be significantly more efficient" for the Health Board, I find that it would not be "significantly more efficient" for you. In the circumstances, I find it appropriate to grant you access (1) to all of the available daily report entries by way of inspection and (2) to grant you access to the daily report entries relating to your sister, for the 12 days prior to the removal of her body from the hospital, by way of duly authenticated transcripts.

Information on Staff Members

The issue here is whether the Health Board was correct in refusing to answer your question, by way of the provision of relevant records, as to whether the staff who attended your sister on the night of her death are still alive. This is item 45 in your statement of request (see Appendix). Any records held by the Health Board about the staff members concerned would, by their nature, be personnel records relating to their employment or employment history. [See section 6(6)(a) of the FOI Act in conjunction with category (iv) under the definition of "personal information" in section 2 of the Act.] Information in such records is personal information about the staff concerned and, in the normal course, is protected from release by virtue of section 28(1) of the FOI Act. Certain types of personnel information relating to staff of a public body do not constitute personal information, in the sense of the FOI Act - see category (I) under the definition of "personal information" in section 2 of the Act. However I am satisfied that the information you have requested, in relation to staff on duty on the night of your sister's death, does not fall into this particular category and does constitute personal information about those staff and is protected from release by virtue of section 28(1) of the FOI Act. Accordingly, I find that the Health Board was correct in its decision to refuse any records which might provide an answer to the question asked.

Comment

I take the view that the FOI Act imposes on public bodies a duty to ensure that their record management systems are capable of enabling them to meet their obligations under the Act. In my view, public bodies should have stated record management policies which set out the standards in relation to the creation, maintenance and destruction of physical and electronic records. Destruction should only take place in accordance with a clearly stated destruction policy and in compliance with the provisions of the National Archives Act, 1986 in the case of those public bodies which are covered by that Act.

I accept in the case of the Central Mental Hospital that in the early 1970s the Health Board took over a record-keeping system for which it had not previously been responsible. I accept that the poor quality of record-keeping in evidence in this case may be a reflection of the emphasis on custodial rather than on medical care in this institution. However, almost 30 years have passed since that time. It is not acceptable that the Health Board has not sought in all that time to organise and index the large store of documents which it has inherited. I note that the Department of Health undertook such a task in relation to documents in its keeping which it completed in recent times; this resulted in records requested by you being located. The Department of Education and Science has, I understand, almost completed the indexing of the extensive records it holds in relation to industrial schools and reformatories. Such a task would have resource implications for the Health Board, but I believe that it is the duty of the Health Board to ensure that records in its keeping are capable of ready access to meet its obligations under the FOI Act. This is particularly the case where the records are, as in the case of Dundrum, of a sensitive personal nature.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 and in the light of the release of additional records, I hereby vary the decision of the East Coast Area Health Board, previously known as the Eastern Health Board, in relation to your request of 4 February 1999 insofar as I direct the Health Board (1) to release authenticated transcripts of all records relating to your sister, recorded in the daily record books, for the 12 days prior to the removal of her body from the Central Mental Hospital, Dundrum and (2) to provide access by way of inspection to all records relating to your sister, recorded in the daily record books.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner