The Senior Investigator varied the decision of the Hospital and directed that access be granted by way of inspection to certain records. The granting of access in the form of copies would involve an infringement of copyright and section 12 of the FOI Act provides for the granting of access in a form or manner other than that requested.

Case Summary

Whether the Hospital, having granted access to records requested under section 7 of the FOI Act, is justified in its decision to refuse a request for access to further records on the basis that section 10(1)(a) of the FOI Act applies.

Date of Decision: 31.05.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

On 20 September 2007 the Applicant made a request, under the FOI Act, for access to "all aspects of the file Beaumont Hospital hold on me since the files were set up in October 1999 ...". The FOI request also sought "answers" to the following:

• The MRI scan taken in 1991 in the Mater Private Hospital "which was sent out to Beaumont Hospital in October 1999 and they have to date refused to release that scan to me categorically in a letter in March 2004 which I have the copy of with no grounds for refusal".
• The neurologist's notes on "why he left me on epilepsy drugs in June 2001 despite saying he would be starting the drug reduction programme that month" and "the fact Professor Jack Philips told me on 26th June 2000 approx. 3pm 'your operation is a success you are cured of your condition'."
• "If my file has been accessed since May 2004 how many times by whom and for what reason?"

In its decision dated 16 October 2007, the Hospital refused the Applicant's request for access to the records requested under section 10(1)(e) of the FOI Act for the reason that the request was a repeat of FOI requests already made to the Hospital in 2003 and 2006. The Hospital, therefore, deemed the FOI request to have been frivolous and vexatious or part of a pattern of manifestly unreasonable requests (section 10(1)(e) of the FOI Act refers). In relation to the Applicant's query as to the number of times the file had been accessed, and in so far as such a question could be related to a record, the Hospital refused access because of the non-existence of such a record. The Applicant sought an internal review of the Hospital's decision on 23 October 2007. The Hospital's decision following internal review issued on 6 November 2007. The original decision was upheld and the Hospital provided additional information to the effect that it had provided one to one consultation to the Applicant in 2006 when a Hospital Consultant, Dr Norman Delanty had gone through her hospital chart with her.

On 19 November 2007, the Applicant applied to this Office for a review of the Hospital's decision. In subsequent correspondence dated 21 November 2008, the Applicant advised this Office that, at the time of the consultation referred to, Dr Norman Delanty had refused to let her read the file for herself.

Following exchanges between this Office and the Hospital, the Hospital agreed to grant the Applicant access in full to all the records relating to her as held by the Hospital. This Office advised the Applicant of that agreement to grant access in full in a letter dated 19 January 2009. A set of photocopied records (295 pages) were mailed to the Applicant by the Hospital on 23 January 2009. The Applicant acknowledged their receipt in a letter dated 3 February 2009 and claimed that the records received were incomplete. The Applicant described a number of events and procedures which she had experienced at the Hospital which, she contended, had not been included in the records provided by the Hospital. The Hospital provided a detailed response to the Applicant in a letter dated 10 March 2009. The Applicant replied to the Hospital on 25 March 2009.

Following further correspondence between the Hospital and this Office in the course of 2009, a letter issued to the Applicant from this Office on 8 December 2009. That letter dealt with two particular sets of records which the Applicant had identified in her contacts with the Hospital as being missing from the set of records she had received from the Hospital in January 2009, viz.

1. reports on 3 MRI scans "carried out by a researcher to Dr Delanty in September 2003, November 2003 and January 2004", and
2. reports on "brain function tests" carried out by Dr Pender in May 2004.

The letter of 8 December 2009 from this Office also advised the Applicant that, following contacts with the Hospital, this Office was satisfied that the records she had identified as 'missing' did not exist. The Applicant was invited to respond to that letter not later than 22 December 2009. On 22 December 2009, this Office contacted the Applicant to check whether she intended responding to the letter; she advised that she had instructed a firm of solicitors in the matter and that the solicitors would respond to the Office on her behalf. The Applicant confirmed this in a letter to the Office dated 23 December 2009. In all the circumstances, and in the absence of any further response to date from the Applicant or her solicitors, it is necessary to conclude the review on the basis of the evidence already before the Commissioner and to issue a decision to the parties concerned following that review.

In carrying out this review, I have had regard to the following:

• all communications between the Applicant and this Office
• all communications between the Hospital and this Office
• the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator authorised by the Information Commissioner to conduct this review).

Scope of the Review and Preliminary Matters

As explained in the preceding paragraph, this review is confined to the question of whether the Hospital is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the following records deemed to be 'missing' from the set of records provided to her on 23 January 2009:

1. reports on 3 MRI scans "carried out on the Applicant by a researcher to Dr Delanty in September 2003, November 2003 and January 2004", and
2. reports on "brain function tests" carried out on the Applicant by Dr Pender in May 2004.

For the sake of clarity in understanding the progress of this review, it should be noted that the Applicant's name, at the time of her treatment at the Hospital, was Ms Y. Therefore, all the records at issue are in the name of Ms Y.

Submissions

.

Findings

Analysis and Findings

In stating its position that the records at issue (as per 1 and 2 above) do not exist, the Hospital is relying on section 10(1)(a) of the FOI Act which provides that:

 "(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."

In such cases, the Commissioner's role is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner 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.

In implementing the terms of the FOI Act with regard to access to requested records, the Information Commissioner is concerned only with ensuring access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist. Neither does it provide for the creation of records to satisfy an FOI request. It should be noted that the fact that one might expect that such records should exist, and that the absence of such records might suggest inadequate record keeping practices on the part of the Hospital, is not an issue in this review. The Information Commissioner's understanding of her role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) viz.

"I am satisfied also that the respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Hospital and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

The Records

Record No. 1 ( Reports on 3 MRI scans "carried out by a researcher to Dr Delanty in September 2003, November 2003 and January 2004")

On 3 December 2009, Dr Delanty confirmed in writing that "I have a record that 'Ms Y' participated in a magnetic resonance spectroscopy research study being conducted by Dr Sunita Sukumaran/Dr Norman Delanty. As a participant 'Ms Y' attended Beaumont Hospital and had magnetic resonance spectroscopy on three occasions - 21st September 2003; 16th November 2003; 25th January 2004. These scans are not in 'Ms Y's' Hospital chart and not available for review as they were carried out under research." In a covering letter to this Office the Hospital has explained that, because they belonged to a research study, the three MRI reports in question could not be identified because they would have been anonymised. In all such cases, records belong to the research study and not to the individuals who participate in that research. Effectively, they are anonymised; the only reason for the existence of records in these circumstances is to inform the research study and not to contribute to the individual's medical history. In the case of the Applicant, therefore, any material from a research study in which she participated would never have been included as part of her medical records as a patient at the Hospital.

I am satisfied that, in these circumstances, the Hospital's position that the records should be refused under section 10(1)(a) is reasonable and I find accordingly.

Record No. 2 (Reports on tests carried out by Dr Pender in May 2004)

On 29 October 2009, Dr Pender stated in writing that the Applicant ''was seen for Neuropsychological Assessment and discussed concerns about her cognitive functioning''.

Dr Pender stated that the Applicant completed a Neuropsychological Examination, which is a series of tests of psychological functioning, and that he gave her feedback on her results. In the course of this review, two further records were located by the Hospital (numbered 47a and 47b), these two records have recently been mailed to the Applicant.

Dr Pender has further explained to this Office that a need for further reporting in relation to her results did not arise as he had spent a considerable amount of time discussing the results with the Applicant. Dr Pender has added that it is quite common not to produce any further report, particularly as the focus of the exercise was on providing feedback to the Applicant.

The Hospital has also provided this Office with the scoring sheets for the tests of psychological functioning which were administered to the Applicant. These are accompanied by one record which is a Hospital continuation sheet dated 6 April 2004 which was completed by Dr Pender. That record has also been mailed to the Applicant.

Turning to the remaining records (scoring sheets), I am satisfied that Section 12(2)(b)(ii) of the FOI Act applies with regard to the manner of access:

"Where a head decides to grant a request under section 7 and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the head concerned is satisfied ...

(b) that the giving of access in the form or manner requested would ...

(ii) involve an infringement of copyright (other than copyright owned by the State, the Government or the public body concerned),"

The Hospital has not argued that the records are exempt; neither can I see how any of the exemptions would apply to the scoring sheets at issue which relate to the Applicant's personal information. I have examined the records in question and it is clearly indicated on the records themselves that they are protected by copyright. That copyright is owned by parties other than the State, the Government or the Hospital. I am satisfied that the scoring sheet records arising from the psychological functioning tests in question are protected by copyright which would be infringed by providing copies of these records to the Applicant or any other person. In these circumstances, I am satisfied that access should be granted to the Applicant by way of providing a reasonable opportunity to inspect the records as envisaged by section 12 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby vary the decision of the Hospital and direct that access be granted by way of inspection to the 13 double-sided pages of records described above as scoring sheets.

Right of Appeal

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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

31 May 2010