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

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

Background

The applicant made an FOI request to the HSE on 30 June 2014 for the medical records of her late mother, who passed away in 1945 in St. Camillus Hospital, Limerick. On 9 July 2014, the HSE issued a decision in relation to the applicant's request, in which it explained that although it had performed searches for records within the scope of the applicant's request, no records had been found. The HSE refused the applicant's request under section 10(1)(a) of the FOI Act.

The applicant sought an internal review of the HSE's decision on 14 July 2014. As no internal review decision was forthcoming from the HSE within the timeline set out in the FOI Act, the applicant sent a further letter to the HSE on 5 December 2014, inquiring as to the status of her request. On 17 December 2014 the HSE issued its internal review decision, which affirmed its original decision to refuse the applicant's request under section 10(1)(a) of the FOI Act, on the basis that no records existed or could be found. The HSE also apologised for the delay which the applicant experienced in the processing of her FOI request. The applicant submitted an application to this Office for a review of the HSE's decision on 4 June 2015.

Mr Art Foley of this Office wrote to the applicant on 14 August 2015, setting set out the searches which the HSE said it had performed in an effort to locate the records sought by the applicant together with details of its record management practices in relation to records of this kind. Mr Foley informed the applicant of his view that the HSE was justified in its decision to refuse access to the records sought on the basis that they do not exist or could not be found after reasonable steps to ascertain their whereabouts had been taken. I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review I have had regard to correspondence between the applicant and the HSE, to correspondence between the applicant and this Office, to correspondence between the HSE and this Office, and 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 Review

This review is concerned with whether the HSE was justified in its decision to refuse access to records sought by the applicant under section 10(1)(a) of the Act on the basis that no records exist or could be found.

Analysis and Findings

The HSE, at internal review, relied on section 10(1)(a) of the FOI Act in refusing the applicant's request. Section 10(1)(a) of the Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases 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 or 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 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 v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

The HSE, in a submission to this Office dated 31 July 2015, provided details of the searches it undertook in an effort to locate records within the scope of the applicant's request, and of its record management practices with respect to the type and age of records sought by the applicant. As I have outlined above, Mr Foley of this Office has provided the applicant with details of the searches performed by the HSE. 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 HSE stated that the records sought, created in 1945, predate the foundation of the HSE and the former Health Boards. The HSE stated that it is unable to locate records from before 1961 from St. Camillus Hospital, and that records held in St. Camillus Hospital post 1961 relate to admissions, discharges and the financial information of the Hospital. In its submission to this Office the HSE mentioned that there are unconfirmed reports that certain of St. Camillus' records from the period 1920-1960 were destroyed in a fire during the 1960's.
The HSE stated that, in order to locate records within the scope of the applicant's request, it contacted, variously, St. Camillus Hospital, St. Joeseph's Hospital, the Medical Records Department in University Hospital Group Limerick (incorporating University Hospital Limerick, Regional Maternity Hospital Limerick, and Croom Hospital), Mederex, Iron Mountain, and retired staff of St. Camillus. Unfortunately, when contacted, none of the parties mentioned above could locate the records sought by the applicant, or advise as to the location of records.

In order to provide further information to the applicant, the HSE contacted Limerick City Fire Services and the Limerick Leader to determine if any evidence existed which would confirm or otherwise whether it is possible certain of the records of St. Camillus Hospital were destroyed in a fire during the 1960's. Neither organisation was in a position to shed any further light on whether a fire destroyed some of the records of the Hospital or otherwise. Similarly, the HSE contacted the Sisters of Mercy Order, and Limerick City Archives, for any information on the location of the records sought and for any information on whether records were destroyed in a fire. The Sisters of Mercy and the City Archives were not in a position to advise on the location of records from St. Camillus Hospital, nor could they provide any information on the possibility records were destroyed in a fire.

While the HSE, in its decision, referred to the possibility a fire destroyed records from St. Camillus Hospital, following further investigation, it cannot established whether or not a fire occurred. It would appear unlikely however, given that none of the bodies contacted in relation to this possibility (St. Camillus Hospital, the Sisters of Mercy, Limerick City Fire Services or the Limerick Leader) could locate records which would indicate that such a fire took place.

The HSE further stated that a survey performed by the Department of the Environment in 1995 of Limerick City Archives, including the records of hospital institutions, found that there was a gap in the records of St. Camillus Hospital between the 1920's and the 1960's. The HSE contacted the Office of the Director General of the HSE in relation to this survey; however, no information as to the location of these records has arisen since this survey. The Administration staff of St. Camillus Hospital confirmed that such a gap in their records exists, and were similarly unable to advise as to the location of the missing records.

The HSE said that due to the age of the records sought, as well as the fact that the records would predate the founding of both the Health Boards and the HSE, it is difficult for it to determine where these records would have been stored or retained, or to comment with certainty as to the record management practices which would have prevailed in 1945. The HSE also said that following the searches it has performed for the records, it is unable to identify any other areas within the HSE, if any, which would retain a copy of the record sought. It further stated that due to the volume of the records which are missing, it is unlikely that the records are misfiled in an incorrect area.

The HSE expressed its regret to the applicant that it has been unable to locate the records sought and said that, should the records be located in the future, it would be happy to make these available to her.

Having considered the submissions of both parties, and the thorough measures taken by the HSE to locate the records sought by the applicant, I am satisfied that the HSE has taken reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the HSE's decision to refuse the applicant's FOI request under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after reasonable steps to ascertain their whereabouts have been taken, was justified.

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 to refuse access to the records sought by the applicant under section 10(1)(a) of the Act, on the basis that the records do not exist or cannot be found after reasonable steps to ascertain their whereabouts have been taken.

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 after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan,
Senior Investigator