Case 100163

The Senior Investigator found that the HSE is justified in its decision to refuse access to additional records on the basis of section 10(1)(a) of the FOI Act.

Case Summary

Whether the HSE is justified in its decision to refuse access to additional medical records relating to the applicant's late husband on the basis that the records are exempt from release under section 10(1)(a) of the FOI Act.

Date of Decision: 19.10.2011

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

Background:

The applicant made an FOI request to the HSE on 18 January, 2010 seeking access to records relating to her late husband who died in 2008 in Midlands Regional Hospital, Tullamore (the Hospital). The HSE in its decision of 12 March, 2010 refused access to certain records on the basis of sections 21(1)(a), 22(1)(a),  28(1) and 28(5B) of the FOI Acts. The applicant appealed this decision on 22 March, 2010 and the HSE released additional records in its internal review decision of 14 April, 2010. The applicant wrote to this Office on 09 July, 2010 seeking a review of the HSE's decision.

On 21 July, 2011 the applicant was informed of this Office's preliminary views on this case and a response was received on 25 July 2011. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicant (including those 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 Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

In the course of this review the applicant clarified that she was not seeking further access to any of the records identified on the schedule provided by the HSE. She stated that she believes additional records exist which have not been released. She identified three records she is seeking and agreed that the scope of this review would be confined to these records as follows:

1. Handwritten minutes of a meeting which took place in the hospital on 26 March, 2008;
2. Handwritten notes made by Dr. Bolger after her husband's death;
3. Syringe Driver Monitoring Form covering the period her late husband spent in the Intensive Care Unit (ICU) on the morning of 28 March, 2008.

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to the additional records described above on the basis of section 10(1)(a) of the FOI Act.

Submissions

.

Findings

Section 10(1)(a)

The HSE's position is that it has identified and released all of the records it holds which are covered by the request. While it has not said so explicitly, it is clear that the HSE is relying 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.)

1. Handwritten minutes of a meeting which took place in the hospital on 26 March, 2008

A named Divisional Nurse Manager has confirmed in writing to this Office that she took the notes/minutes of the meeting held on 26th March, 2008. She states that she personally typed the minutes and subsequently destroyed her handwritten notes at that time. The typed version of the minutes has been released to the applicant. The applicant acknowledges that she has received the typed version but requested the handwritten notes as she claims the typed minutes are incorrect/incomplete. The applicant refers to a particular nurse who she states was present at the meeting, but whose presence is not recorded in the typed minutes provided to her. The Deputy Hospital Manager has advised this Office that the nurse in question did not attend the meeting in question but was involved in an informal discussion at ward level with the applicant and the Director of Nursing on the same date. No minutes of this discussion were recorded. 

2. Handwritten notes made by Dr. Bolger after her husband's death

In an internal e-mail dated 19 December, 2008, a copy of which was previously released to the applicant, a reference is made to a statement by Dr Bolger in relation to "handwritten notes that were completed by him when patients died". The applicant is seeking copies of these notes. The Hospital's position is that the relevant notes(identified as records 26 to 31)  were released to the applicant on 8 January, 2009 in response to a previous request. The applicant acknowledges that she received these notes (records 26 to 31) but states that while they are handwritten notes, they clearly were created before the date of her late husband's death and she feels there are further notes which have not been identified or released. This was put to the HSE by Ms Anne O'Reilly, Investigator in this Office, and in response Dr. Bolger personally confirmed  that the records already released (records 26 to 31) are the notes referred to in the e-mail of 19 December, 2008 and that he did not create any other handwritten notes in relation to the applicant's late husband.

3. Syringe Driver Monitoring Form

The applicant states that drugs were administered to her late husband via a syringe driver delivery system. This was commenced on 28 March, 2008 at 9.10 am in the Intensive Care Unit (I.C.U.). She states her late husband was moved to the Hospice Room at 1.30 pm on same day, but she has received no copy of  the Syringe Driver Monitoring Form to cover the period in ICU.

In response to Ms O'Reilly's queries the HSE provided the following clarification:

• there was no written policy, procedure or guideline in existence across the hospital in March 2008 which supported the use of, or [set out] at what stage this form should be commenced;
• the unwritten practice in March 2008 was to use the syringe driver monitoring form to document when a patient is receiving medication via a syringe driver to monitor that it is infusing as prescribed;
• all syringe drivers were to be monitored every four hours, as documented on the bottom of the syringe driver monitoring form;
• the nursing care plan record from ICU indicates that the syringe driver was commenced at 9.10 a.m; this is also documented on the drug prescription and administration record;
• the effects of the medication are recorded in the nursing care plan record at 10.10 am;
• the prescription for the medication in the syringe driver was changed as documented in the drug prescription and administration record at 12.15 p.m;
• the patient was transferred to the Hospice Room at 1.p.m, which is within the four hour period;
• as four hours had not elapsed from time of commencement to time of transfer to the hospice room a "Syringe Driver Monitoring Form" was not completed and therefore does not exist for the time frame under query.

In implementing the FOI Act, the Commissioner is primarily concerned with ensuring public access to existing records in accordance with the provisions of the Act.  The Act does not provide for a right of access to records which ought to exist.  Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it.  The HSE's  position is that the three additional records being sought by the applicant either never existed or have been destroyed. Therefore, based on the search steps, record keeping practices and evidence outlined above, I am of the opinion that the HSE is justified in its conclusion that the 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 HSE 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.

Seán Garvey

Senior Investigator

19 October 2011