Whether the HSE was justified in its decision to refuse access to the medical records related to the birth of the applicant's son on [DATE] under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

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

Background

On 24 February 2014, the applicant, through her advocate, applied to the HSE for access to medical records relating to the birth of her son on [DATE] at Bantry General Hospital. Her son was transferred on the same date to St. Finbarr's Hospital Cork where he unfortunately subsequently passed away.

In its decision of 6 June 2014 the HSE decided to partially grant the applicant's request and released one record, a copy of the Birth Register. The HSE stated that it was unable to locate any further records after all reasonable searches had been made, relying on section 10(1)(a) of the FOI Act. The applicant sought an internal review of this decision on 4 July 2014 contending that the HSE had failed to release all relevant records. On 6 August 2014, the HSE issued an internal review decision affirming its original decision. It stated that extensive searches had been carried out in Bantry Hospital and in Cork University Maternity Hospital, which incorporates the medical records for the former Erinville and St. Finbarr's Hospitals. The HSE explained that the only further records it identified were the baby's Burial Card from St. Finbarr's Hospital, the Post Mortem Report from the Histology Department at Cork University Hospital, and the aforementioned Birth Register at Bantry Hospital, all of which the HSE released to the applicant.

On 4 November 2014, the applicant sought a review by this Office of the HSE's decision.

Mr Benjamin O'Gorman of this Office informed the applicant, by letter dated 27 January 2015, of the searches undertaken by the HSE to locate all relevant records and of its responses to queries raised arising from the applicant's concerns. In this letter Mr O'Gorman outlined his view that the HSE's refusal to grant access to further records on the ground that no further records exist or can be found was justified and he invited the applicant to make further comments if she disagreed with his view. The applicant indicated on 5 February 2015 that she wished for this Office to proceed to a full decision. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

During the course of this review, the HSE located an index card, containing a Medical Record Number for the applicant's son, in St. Finbarr's Hospital, and released this record to the applicant.

In carrying out this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and between this Office and the HSE. Finally, I have had regard to the provisions of the FOI Act.

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 the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to further records coming within the scope of the applicant's FOI request on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

The HSE's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant.

Section 10(1)(a) of the FOI Act 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 a case 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 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 was reasonable. The Commissioner's understanding of his 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., available on the website of this Office at www.oic.ie).

In its submissions to this Office the HSE provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

The position of the HSE is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the HSE to locate the records at issue and having considered its explanation of why certain other records do not exist, I am satisfied that it is reasonable to conclude that, very regretfully, the HSE has taken all reasonable steps to locate all relevant records and that the records sought cannot be found. I find, therefore, that the HSE's decision to refuse the applicant's request under section 10(1)(a) was justified.

Decision

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

Stephen Rafferty
Senior Investigator