Whether the HSE was justified in its decision that certain records sought by the applicant relating to the medical care of her uncle do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner

Background

The applicant submitted an FOI request to the HSE managed St John's Community Hospital (the Hospital) on 23 January 2013 requesting:
- A copy of notes taken during the first meeting with [the Acting Director of Nursing] dated 17 December 2012.
- A copy of notes taken during the second meeting with [the Assistant Director of Nursing] dated 14 January 2013.
- A copy of all medical notes/records relating to [the applicant's uncle] between the dates of 30 October 2012 up to 14 January 2013.

The applicant provided the HSE and this Office with the consent of her uncle for her to act on his behalf for the purposes of the FOI request.

The HSE decision of 28 February 2013 said that it was granting full access to all documents requested. On 27 March 2013, the applicant sought an internal review of this decision, noting that medical records between the dates of 16 to 21 November 2012 were not included in the records provided. The HSE's internal review decision of 26 July 2013 stated that, following a search conducted by the Director of Nursing at the Hospital, no clinical medical records for the dates outlined could be found. While not stated in its decision, the HSE effectively refused access on the basis that Section 10(1)(a) of the FOI Act applied. During the course of the review and following queries from my Office, a small number of additional records (ward diary entries) were identified as relevant to the original request and these were released by the HSE as recently as November 2014.

The applicant's letter seeking a review of the HSE's decision was received by my Office on 3 October 2013.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE and to the provisions of the FOI Acts. Following consideration of all the issues relevant to this review and extensive engagement by my Office with the HSE, I have decided that I must bring it to a conclusion by way of a formal, binding decision. I should say here that the review process took a lot longer than I would have liked. Staff changes in my Office resulted in several Investigators handling the case at various times; however, I am satisfied that the investigative process carried out was appropriate and thorough and that the prolonged exchanges between the HSE and my Office were necessitated by the circumstances of the case and the nature of the responses received.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of the review relates solely to whether the decision of the HSE to refuse access to the remaining records sought on the basis that Section 10(1)(a) of the FOI Act applies was justified. Any records or parts of records which were released during the course of the review are no longer within the scope. For the avoidance of doubt, the review relates to the records for the period 16 to 21 November 2012.

Preliminary Matters

Handling of the request
Requesters have a right to expect that decision makers in public bodies such as the HSE would be aware of and comply with the statutory requirements in relation to FOI. I find it necessary to draw attention to several instances where the handling of this request fell short of what would be expected.

In dealing with the request, it is clear that the HSE restricted consideration of the records to those in the medical file of the applicant's uncle. It was only following intervention by my Office that it considered that there may be other records which were relevant to the request.

It is also clear that the HSE did not observe the timeframes as set out in the FOI Act for dealing with the request and subsequent internal review. There was confusion about the date of receipt of the request and consequently, the date by which the applicant should have expected a decision. I take the view that the date on which a decision is due should be calculated from when the request is received by the part of the HSE service to which it is addressed and not from when it is received internally by a particular office within the HSE i.e. the Consumer Services Department in this case. It is not clear whether the applicant was advised that she should address her FOI request to a specific office or officer.

Furthermore, under section 14(4) of the FOI Act, an internal review decision shall issue not later than three weeks after receipt of the application. In this case, the internal review decision issued some four months later and then it appears that it issued only in response to correspondence from the applicant. The internal review decision did not cite any basis in the FOI Act for refusing access to the records sought although this is required under section 14(5).

Serious Concerns Identified
It is important to note my jurisdiction does not extend to adjudicating on how public bodies carry out their functions generally or to investigate complaints against public bodies. Nonetheless, I wish to highlight some serious concerns identified in my review of the HSE's decision concerning the medical records in question.

It is clear that the records the subject of this review were created by Hospital staff in the normal way and placed on the patient's file. At some point the records went missing. In the particular circumstances of this case, the records which are missing relate to a period during which the patient's family had concerns regarding his care. In cases such as this, the availability of contemporaneous medical notes may be critical to addressing any issues arising regarding the care and treatment of the patient and the absence of these is of serious concern, not just in the context of FOI, but in a broader context. Having examined the file and the responses of the HSE to the initial search queries raised by my Office, it appears to me that the situation we are dealing with is one of possible wilful removal of records from a patient's file.

Indeed, my concern at this situation is such that I asked the HSE if any investigations or enquiries had been conducted or if the matter had been referred to An Garda Síochána. Given the timing of the records' apparent removal, I consider the possibility that records which were the subject of an FOI request were deliberately removed to be a very serious matter. The HSE said in a submission to my Office that it has not been able to establish "any prima facia case to warrant a disciplinary investigation". It also said that involving the Gardaí would be a matter for local management and that they would not be called "in the absence of evidence of a crime". I accept that the HSE takes the view that it is speculation to assume that the missing records were the subject of a criminal act and, of course, I do not have jurisdiction to conduct an investigation into any such allegations. Nonetheless, I have formed the view that, given the information provided by the HSE in response to my Office's queries, it is unlikely that the records were mislaid or misfiled. While not applicable to this particular case, I note that the Freedom of Information Act, 2014 provides at Section 52 that a person who destroys a record with intention to deceive shall be guilty of an offence and be liable on summary conviction to a fine.

Further concerns arose in the course of the review when a number of inconsistencies in the information provided by the HSE were identified and not adequately addressed. Supporting information relevant to the aspects of the review which I would have expected to exist was not provided to my Office when sought. In one instance, notes relevant to the review were destroyed. I deal with the sequence of events below.

Analysis and Findings

Section 10(1)(a)

I should explain at the outset that the FOI Act confers a general right of access to records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act cannot oblige public bodies to create records to satisfy or respond to the request. In this case, it is clear that the records sought did exist, but that they went "missing" at a particular point in time and the HSE's position is that at the time the FOI request was received, it no longer held them.

Section 10(1)(a) of the FOI Act states:

"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

My 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for 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 records were reasonable. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally my function to search for records that a requester believes are in existence. My Office's understanding of its 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.) which is available on my Office's website,www.oic.ie.

In my view, what constitutes reasonable steps to locate records in circumstances such as are found in this case is substantially different from the steps which might be taken in the normal course of events. In other words, I accept that records sometimes cannot be found by reason of misfiling, inadvertent destruction, the passage of time or otherwise. The HSE's position is that the records containing the very recently created patient notes from 16-21 November 2012 were discovered to be missing in January 2013. From the various accounts of what happened, it appears that the patient's file was brought along to a meeting that staff had with the applicant on 14 January 2013 but that it was not opened at that time. The fact that certain pages were missing came to light when the FOI request was made. The applicant stated in her application for review that the nursing notes seemed to have gone missing when she expressed concerns to the Hospital about her uncle's care. She said that he had complained of pain on Friday 16 November 2012 but was not seen by a doctor for two and a half days after that. She gave details of information received at a meeting with the Hospital, including a doctor's insistence that he had attended the patient on the Sunday night (18 November 2012). She posed some questions as to what happened and which nurses had been involved in various contacts with the doctor and in attending to her uncle during that period.

In response to the initial search queries raised by my Office with the HSE, it outlined the normal arrangements for records management and provided details of the searches which had been undertaken in the Hospital for the missing records. According to the HSE responses, the records were present at meetings between the applicant and Hospital staff on 17 December 2012 and 14 January 2013, though they were not used at either meeting. Based on the recollection of a staff member, the HSE stated that "following an FOI request [a HSE member of staff] checked the file and the portion of the nursing notes, now missing, was present. The file was on the Rehab Unit overnight and on the following morning three pages of the nursing notes had been removed." The HSE stated that a comprehensive search of the filing room, Rehab Unit, Day Hospital and other Units, and Nursing administration offices, was conducted at the time but the missing notes were not located. The HSE also stated that Hospital Administration interviewed all relevant staff regarding the disappearance of these notes, i.e. nursing staff, clerical staff and the relevant Medical Officer. This process included interviewing certain staff members whose names were suggested by the applicant as being amongst those who witnessed the relevant notes prior to their disappearance. According to the HSE, five members of staff have tried to locate the missing records.

A number of issues were identified by staff of my Office in relation to the responses of the HSE. These included conflicting information, inaccurate information and lack of supporting material for some aspects of the responses. My Office asked the HSE to provide signed statements from the staff who attended the meetings with the applicant on 17 December 2012 and 14 January 2013 regarding what they remember in relation to the missing notes. The signed statements, when provided, shed no light on what happened to the missing notes. They state that they did not take or remove the notes at any time. Two of the statements referred to a meeting on 23 January 2013. Apart from the reference in these statements, no other information has emerged about a meeting on 23 January 2013. According to the HSE's later submission in response to queries from my Office, there was no meeting on this date. In my view, the provision of signed statements in this context is not something to be done or taken lightly, and I would expect that the content would accurately reflect the relevant facts. It seems to me that it should have been possible for the HSE to adequately address this issue and explain the discrepancy. Despite further specific enquiries, this has not happened.

In one of its initial responses, the HSE referred to there being "three pages" of notes missing. This response also stated that "[a staff member] has written notes kept on the exact day the nursing notes went missing". When the HSE was asked by the Investigator how it was known that "three pages" were missing, no information was provided to support this position. The notes taken by the staff member were also sought by my Office and the HSE then notified the Investigator that these notes were disposed of during a "Lean Project" when the staff member in question was on leave. While I have no reason to doubt the HSE's explanation, it does display, at the very least, a lack of understanding of the importance of an investigation into the circumstances of the missing records in that apparently contemporaneous notes of an important nature could be accessed and destroyed while a staff member was absent. Section 37(1)(a) of the FOI Act provides that I may require any person who, in my opinion, is in possession of information relevant to a review to provide same to me. I do not consider it acceptable that any such information be destroyed, until such time as my review was complete. In the circumstances of this case, where the information was destroyed, invoking my powers under Section 37 would have served no purpose.

While information was initially provided to the Investigator in this Office to the effect that various named members of staff were interviewed/asked about the missing notes, when asked to provide notes of those interviews and copies of any internal correspondence on the matter, the HSE responded that no formal interviews took place, no notes were taken and there was no internal correspondence on the matter.

As set out above, while it is a matter of serious concern that personal medical records held by the HSE can go missing in a case such as this, my Office has no powers to direct public bodies in how to manage their records. It is also necessary to be clear that it is not normally my function to search for records but to be satisfied that the public body has demonstrated that it has taken all reasonable steps to search for records. I am glad to note that, during the course of the review, the HSE informed my Office that, as a result of this incident, changes had been made to records management arrangements in the Hospital, including more secure storage arrangements and restrictions on access to medical records. The HSE acknowledged that it does not consider this [records not being found] to be a satisfactory outcome but that all avenues of search to locate the missing notes have now been exhausted. It also stated in one of its more recent responses that "it does appear that these entries have been forcibly removed..."

Following the extensive enquiries and follow up clarification requests made by my staff of the HSE, including some eight separate responses from the HSE, the position of the HSE is that the records requested by the applicant cannot be found or no longer exist. In the circumstances of this case, and despite the less than adequate response of the HSE in regard to some aspects of this review, I have no option but to conclude that the decision of the HSE is justified on the basis of Section 10(1)(a) of the FOI Act. I am satisfied that extensive searches were carried out by the HSE for these records and that further searches are unlikely to result in the records being found. As stated above, my role as Information Commissioner in cases such as this is confined to considering the adequacy or otherwise of a public body's search for requested records. However, I intend to write to the Head of the HSE and to send a copy of my decision to him in order to draw attention to what happened in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE. I do so reluctantly in the circumstances of this case, where no acceptable explanation for the absence of the relevant records has been given. I would expect that the HSE would release the relevant pages to the applicant in the unlikely event that, as a result of further investigation or otherwise, the records come to light in the future.

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.

Peter Tyndall
Information Commissioner