Whether the HSE was justified in its decision to refuse access to medical records relating to the applicant's mother under section 15(1)(a) of the FOI Act on the ground that no further 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 28 January 2015, the applicant sought access to her late mother's medical records pertaining to her pregnancy and to the birth of the applicant in January 1961 at St Finbarr's Hospital, Cork.

In its decision of 4 March 2015 the HSE provided the applicant with a copy of her mother's Birth Registration Book Entry from St Finbarr's Hospital. As it could not locate a chart for the applicant's mother, the HSE refused access to any further records. On 29 March 2015, the applicant sought an internal review of this decision and on 23 April 2015 the HSE affirmed its original decision, stating it had carried out extensive searches for the records. By letter dated 25 September 2015, the applicant sought a review by this Office of the HSE's decision.

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.

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 request on the ground that no further records exist or can 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. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their 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 its submissions to this Office, and in the course of follow-up queries from this Office, the HSE provided comprehensive details of the searches it undertook in an effort to locate the records sought by the applicant. On 15 December 2015, Mr Richard Crowley of this Office informed the applicant of the searches undertaken by the HSE to locate relevant records and of the HSE's responses to queries raised by the applicant in her submissions to this Office. On 7 January 2016, the applicant raised some queries concerning the searches undertaken and other possible avenues of search for the records. Mr Crowley followed up these queries with the HSE and reverted to the applicant with the HSE's responses. While I do not propose to repeat all of the details of the searches undertaken and of the explanations given by the HSE in response to the additional queries raised, I confirm that I have had regard to those details for the purposes of this decision.

In summary, the HSE stated that Cork University Maternity Hospital (CUMH) holds maternity records for St Finbarr's Hospital, and that it carried out searches for the records at the Medical Records Department in CUMH, the Medical Records Department in Cork University Hospital and at its off-site archived storage facility, the same off-site storage facility referred to by the applicant in her original FOI request and subsequent submissions to this Office. The position of the HSE is that, regrettably, it cannot find any further records relevant to the applicant's FOI request having carried out extensive searches to locate the records. Having reviewed the steps taken by the HSE to locate the records at issue, I am satisfied that it has taken all reasonable steps to locate the relevant records and that the records sought cannot be found. I find, therefore, that the HSE's decision to refuse the applicant's request for further 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 HSE 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator