Whether the Hospital was justified in its decision to refuse access to records relating to the applicant's stay in the Hospital in 1968 on the ground that they no longer exist.

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 19 January 2015 the applicant submitted a request to the Hospital for the medical records of his stay in the Hospital in April 1968. The Hospital issued a decision in respect of the applicant's request on 5 February 2015, releasing a copy of his healthcare record index card to him, and refusing access to any further records on the ground that they no longer exist. On 18 February 2015 the applicant submitted a request for internal review to the Hospital. On 23 March 2015, the Hospital issued its internal review decision, affirming its original decision to refuse access to any further records. The applicant sought a review by this Office of the Hospital's decision on 17 July 2015.

During the course of the review, the applicant sought clarification as to whether the Hospital held any records of the medical procedure carried out on him. The Hospital stated that it performed a search for theatre records relating to the applicant's surgery and while no such records were located, the Admissions Log Book was located and the relevant extract was provided to him on 21 May 2015. Mr Art Foley of this Office wrote to the applicant and provided details of the searches the Hospital had carried out for records within the scope of his request and of its record management practices. He informed the applicant of his view that the Hospital was justified in its decision to refuse his request for further relevant records. In subsequent correspondence, the applicant indicated that he did not accept the explanation given by the Hospital as to why his records were not available. Therefore, 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 Hospital and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Hospital.

Scope of Review

This review is concerned solely with whether the Hospital was justified in refusing the applicant's request for further records relating to his stay in the Hospital in 1968 under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 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 FOI body, on the basis of which the FOI 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).

In a submission to this Office dated 21 September 2015, the Hospital provided details of the searches it undertook in order to locate records coming within the scope of the applicant's request, and information relating to its record management procedures which led it to conclude that the applicant's records had been destroyed. I note that Mr Foley has provided the applicant with these details. Therefore, while I do not propose to repeat all of these details here, I confirm that I have had regard to them for the purposes of this decision.

In essence, the Hospital's position is that the healthcare records of all living patients born before 1969 were destroyed in 1992, in accordance with its policy at the time and accordingly, that the applicant's records would have been destroyed. The Hospital has provided this Office with documents recording internal discussions relating to a decision made by it in 1992 to destroy healthcare records, as a result of difficulties it experienced with the storage of such records at that time. The construction of a Healthcare Records Library was discussed at this time also. To facilitate the movement of records to the Library, the Hospital made the decision to destroy the records of patients who had reached 18 years of age plus 5 years in 1992. The applicant's records would have been destroyed in this process. The Hospital further stated that if the applicant's records had not been destroyed at this stage, as a result of their being misfiled or misplaced, they would have been rediscovered and destroyed during annual searches of the Library undertaken since 1992.

The applicant's argument centres on the fact that he had previously been granted an opportunity to inspect his records through his solicitors in 1983. He considers that by receiving access to his records in this way, the Hospital should have been alerted to the fact that special arrangements should have been put in place in respect of his records, and withheld from destruction. However, the Hospital stated in its submission that this was not the case. It explained that had legal action been commenced by the applicant at the time at which the record was examined, the record would have been held by the Medico Legal Office until the action was completed but as no legal action was commenced, no special measures were applied to the applicant's records. A request by a solicitor to view a file would not, at that time, have resulted in any additional actions to be taken by the Hospital with respect to the retention of the file, nor would it have been treated as an indication that the legal action was imminent.

While it is clearly upsetting for the applicant that he has not been able to access his medical records, I am satisfied that the Hospital has provided a reasonable explanation for finding that no further relevant records exist. I find therefore, that the Hospital's decision to refuse the applicant's request for further relevant records under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse the applicant's request under section 15(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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator