Whether the HSE was justified in its decision to refuse access to additional records relating to a specified medical procedure used in the treatment of clots at Cork University Hospital (the Hospital) under section 15(1)(a) of the FOI Act on the ground that no such records exist or can be found

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 27 February 2015 the applicant submitted a detailed eleven part request to the HSE for both information and records relating to what she described as an "experimental procedure" for the treatment of ischemic stroke carried out at the Hospital from 1 December 2009 to 31 October 2014. At parts one and two of her request, she sought details of the number of patients who underwent a medical procedure she identified as having a variety of descriptions. The remaining parts of her request were for records and/or information relating to the procedure in question.

On 15 May 2015 the HSE refused the request on the ground that no such experimental procedures or trials were undertaken at the Hospital and that it held no relevant records. On 20 May 2015 the applicant sought an internal review of the HSE's refusal. She referred to a media article in which Professor Williams of the Royal College of Surgeons referred to the treatment having been given to patients in trials in the Hospital.

On 22 June 2015 the HSE issued an internal review decision stating that while the Hospital was not involved in any trials of the experimental procedure identified by the applicant, it carried out a procedure, which it referred to as "Thrombectomy", on an average of one patient per month over the past number of years. It did not grant access to any records, and made no reference to any specific section of the FOI Act. On 16 September 2015 the applicant applied to this Office for a review of that decision.

During the course of this review the HSE stated that a number of records within the scope of the applicant's request had been found. Consequently, by letter dated 27 January 2016, the HSE provided the applicant with a certain amount of information relating to her request. The applicant indicated to this Office that she was not satisfied with the level of information provided by the HSE. Therefore I have decided to conclude this review by issuing a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to additional records sought by the applicant relating to a specified medical procedure carried out at the Hospital on the ground that no such records exist or can be found.

Preliminary Matters

I should explain at the outset that, in general, requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The Act does not require FOI bodies answer general queries, nor does it require them to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Accordingly, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In this regard, the applicant's requests for information are deemed to be requests for records which contain the information sought.

Secondly, this review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness of otherwise of the absence of certain records. However, it is incumbent on the HSE to satisfy this Office that the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Thirdly, in her submission of 3 February 2016 in response to the HSE's letter of 27 January 2016, the applicant stated that the HSE should have provided certain records to support its position that certain records do not exist. This review cannot be extended to consider whether records not originally sought should now be released. Should the applicant wish to obtain any such records she will have to make a fresh FOI request to the HSE.

Analysis and Findings

In its letter of 27 January 2016, the HSE provided certain information in response to the applicant's FOI request and it enclosed a small number of records which it deemed of relevance. Essentially, it is the HSE's position that no further relevant records exist or can be found. As I have outlined above, the applicant was not satisfied with the level of information provided by the HSE. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI 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.

It seems to me that the FOI request submitted by the applicant in this case is somewhat complex or, at least, some issues arose as a result of the applicant's description of the procedure she identified as an experimental procedure. Section 11(2) of the FOI Act requires public bodies to give reasonable assistance to persons making requests for records. If there was any concern or lack of clarity as to the precise information sought, it was open to the HSE to clarify the matter with the requester. No such clarification was sought.

Furthermore, while Mr O'Gorman of this Office sought comprehensive details of the searches undertaken by the HSE to locate all relevant records coming within the scope of the applicant's request, there was no real and substantive engagement by the HSE with Mr O'Gorman on these matters. Furthermore, it did not adequately explain to this Office why certain records do not exist, if this is, indeed, the case.

Accordingly, it seems to me that the HSE did not take all reasonable steps to locate all relevant records coming within the scope of the applicant's request. I find, therefore, that it was not justified in refusing to consider further relevant records for release. I am satisfied that the appropriate course of action to take is to annul the HSE's decision and to direct it to undertake a fresh decision making process in relation to the request. In doing so, I would suggest that the HSE contact the applicant to clarify exactly what records and information the applicant is seeking, if it is the case that this is not clear from the wording of the FOI request.

I would also like to take this opportunity to remind the HSE of the requirements on FOI bodies when searching for records and to draw its attention to the adequacy of search case guidelines contained in this Office's procedures manual which is accessible at www.oic.ie. I would also draw its attention to the manual of the Central Policy Unit of the Department of Public Expenditure and Reform on dealing with FOI requests, which is available at www.foi.gov.ie.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby annul the decision of the HSE to refuse to release additional relevant records under section 15(1)(a) of the Act, and I direct it to undertake a fresh decision making process in respect of the original request. That decision is subject to the usual rights and timelines of internal and external review.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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