The Senior Investigator found that the HSE is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to the additional records sought on the basis the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Case Summary

Whether the HSE is justified under section 10(1)(a) of the FOI Act in its decision to refuse access to additional medical records of the applicant's late father on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Date of Decision: 31.05.2010

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

Background:

The HSE received an FOI request on 20 February 2009 from the applicant requesting access to the medical records of her late father, who died on 20 August 1946 in  Croom Hospital (the Hospital). On 12 March 2009 the HSE issued a decision granting access to the records. The applicant requested an internal review of this decision on 18 April 2009 as the records released only covered the period to 11 August 1946. The HSE upheld the original decision in its internal review decision of 11 May 2009.

The applicant wrote to this Office on 3 November 2009 seeking a review of the HSE's decision.

In conducting this review I have had regard to the submissions of the HSE as well as those of the applicant (including those she made to the HSE). I have also had regard to additional information and clarification provided by the HSE at the request of this Office and to the provisions of the FOI Acts.

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

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to additional medical records of the applicant's  late father on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

The HSE made no reference to section 28(6) of the Act which is relevant to requests for access to deceased persons' records. I take it that, in view of the release of the records that were found, the HSE accepts that the applicant is an appropriate person to whom the records can be released under the regulations at S.I. No. 387 of 2009. The regulations state at article 4(1)(b)(iii) that, subject to the other provisions of the FOI Act, a request for access to records of a deceased individual shall be granted to

"the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request".

Submissions

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Findings

Section 10(1)(a)

The HSE relied on section 10(1)(a) of the FOI Act to refuse access to the additional medical records sought. Section 10(1)(a) provides as follows:

"(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 Commissioner's role in cases such as this 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. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable.  The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) 

The HSE has provided the following information on record keeping practices:

• prior to about 1956, patients' medical notes were recorded manually in hard bound books,
• medical notes were recorded in alphabetical order by surname with the relevant year printed at the side of the book,
• no medical notes in the MWRH have been microfilmed,
• there is no indication that records for this period were destroyed.

According to the HSE, it carried out the following searches:

• storage and filing areas for medical records were searched,
• searches were carried out manually by name, date of birth and address,
• searches were carried out in the weeks commencing 2/03/09 and 22/04/09,
• searches were carried out by Ms. Mary Curtin, Clerical Officer,
• a verification of the searches was carried out by Ms. Anne Fitzpatrick, Administrator.

According to the HSE, these searches yielded the following results:

• two pages of medical records were found and released,
• the medical records covered the period up to 11/08/46,
• no further records were found for the applicant's late father.

Based on the search steps and record keeping practices outlined above, I am of the opinion that, taking into account the age of the records, the HSE has carried out an adequate search in relation to these records. In summary, my view is that the HSE is justified in its conclusion that the additional records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find accordingly that section 10(1)(a) of the Act applies.

The applicant said that she wanted access to her late father's medical records "to know how and why" he died in 1946. Unfortunately, the Hospital's medical records  for the last few days of her father's life cannot now be found. Although it forms no part of my binding decision, if she has not already had access to her late father's death certificate, information included on the registration of the death might assist the applicant and it is suggested that she might contact the General Register Office, Government Offices, Convent Road, Roscommon in this regard.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

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. Such an 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