Case 100114

The Senior Investigator found that the Hospital 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 that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Case Summary

Whether the Hospital is justified under section 10(1)(a) of the FOI Act in its decision to refuse access to additional staff records for the Applicant 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: 14.07.2010

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

Background:

The Applicant was employed as a midwife in the Hospital from February 1985 to December 1987. In June 2008, she requested a reference from the Hospital. The reference stated that she had been absent on sick leave for 60 days in 1987 which "came as a shock"to her. She wrote to the Hospital on 20 February 2009 requesting a copy of all her staff records under the FOI Act. The Hospital granted access to records and withheld portions of certain records comprising third party information under sections 26(1)(a) and 28(1) of the FOI Act in its decision of 9 April 2009. In a subsequent letter dated 23 April 2009, the applicant requested access to her medical certificates for 1987 covering dates recorded in duty rosters. The Hospital refused access to the medical certificates under section 10(1)(a) of the FOI Act in a second decision letter dated 15 May 2009. The Applicant requested an internal review of this decision and the Hospital upheld the original decision in a decision of 7 April 2010.

The Applicant wrote to this Office on 12 May 2010 seeking a review of the Hospital's decision.

In conducting this review, I have had regard to the submissions of the Hospital as well as those of the Applicant (including those she made to the Hospital). I have also had regard to additional information and clarification provided by the Hospital 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 Hospital is justified in its decision to refuse access to the Applicant's medical certificates for the 60 days sick leave in 1987 on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. I have no jurisdiction to examine queries raised by the applicant as regards the Hospital's administration or the involvement of a third party except insofar as these are relevant to the ''adequacy of search" issue.

Submissions

.

Findings

Preliminary Matters

It is noted that the Hospital did not issue a decision and an internal review decision within the timeframes specified in the FOI Acts. When asked by this Office to explain why the specified timeframes were not adhered to, it said "the decision maker in the Department was on sick leave and thus a letter was sent to the Requester informing her of this and that a decision would be issued upon the Manager's return. Additional time was also required by the Department of Midwifery/Nursing to conduct extensive searches and identify the relevant records. Upon the Manager's return to work from sick leave, a decision issued to the requester on 9 April 2009. "

The Hospital went on to say "the initial appeal letter was received on 10 June 2009 and a decision due on this case on 1 July 2009. On the 25 June 2009, the Master sent a letter to the Requester advising that further information was required in order to process her request in the form of confirmation from the Department of Social and Family Affairs of [applicant's name] PRSI class during the period in question. Upon receipt of this information by the Hospital, the letter states that the internal appeal will then continue at that time. [Applicant's name] responded by letter dated 30 June 2009 in which she confirmed that it will take 6-8 weeks for her to obtain this information and that she will send them to the Hospital at that time.

There was no further contact from [Applicant's name] until her letter dated 1 February 2010 to the Information Management Department where she referred to correspondence dated 11 September 2009. This correspondence was never received by the Hospital and a letter was issued to the Requester on 9 February 2010 explaining this and requesting the outstanding information as per the Master's letter dated 25 June 2009. [Applicant's name] forwarded the requested information required in order to pursue the appeal. The Hospital subsequently issued this decision to the Requester".

In the circumstances of this case, including the age of the records and the additional information required by the Hospital, I accept the explanation provided. However, the FOI Act does not appear to provide for suspension or extension of the statutory period except in accordance with section 9 of the Act in respect of initial requests under section 7. There would appear to be no statutory mechanism for the extension of the internal review period set out in section 14(4) of the Act.

Section 17

The Applicant applied to have her records amended under section 17 of the FOI Act in her internal review letter to the Hospital dated 9 June 2009. However, the scope of this review is confined to the records containing the information requested in her original FOI request of 20 February 2009 as clarified by the request of 23 April 2009. The Applicant was advised by this Office on 4 June 2010 that if she wished to request the amendment of records under section 17, she should submit a new application to the Hospital.

Analysis and Findings

Section 10(1)(a)

The Hospital relied on section 10(1)(a) of the FOI Act to refuse access to the additional 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 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. 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.)

According to the Hospital, it was conscious of the age of the records requested and therefore contacted a number of different departments to ensure that the searches were as comprehensive as possible. It said the following departments were searched:

• Human Resources Department,
• Director of Midwifery/Nursing Department.
• Secretary/General Manager's Office.

According to the Hospital, no relevant records were found in the Human Resources Department or the Secretary/General Manager's Office but relevant records were found in the Director of Midwifery/Nursing Department and released to the applicant. The medical certificates subsequently requested by the applicant were, according to the Hospital, "no longer retained by the Hospital as we believe they were destroyed in accordance with the present file retention policy which states records of this nature are retained for a period of three years."

I realise that the Applicant may not be satisfied with this response. However, as I understand it, it is often the practice of hospitals and other large organisations to destroy staff records after a three year period provided that this is in line with its retention/records management policy. The Commissioner has no role in assessing whether records ought to have been created or retained. The Hospital's policy is to retain general practitioner notes for 3 years. I am satisfied on the basis of the search details provided that reasonable steps have been taken by the Hospital to ascertain the whereabouts of any extant records. I have no reason to believe that if the medical certificates could be found, the Hospital would withhold them from the Applicant. A regards the records of a third party mentioned by the applicant, this review does not extend to those and without the consent of the subject of those records or the application of one of the limited exceptions to the general protection in section 28 of the Act for personal information of persons other than the requester, it is difficult to see how she would be entitled to have access to the personnel records of another individual. In the circumstances of this case, the position now is 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.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Hospital under section 10(1)(a) of the FOI Act.

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

14 July 2010