Case Number: 150389

Whether the Hospital was justified in its decision under section 15(1)(a) of the FOI Act that records could not be found after it had all reasonable steps to look for further records of relevance to the applicant's request for records relating to her late son

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

Background

The applicant's FOI request, dated 19 August 2015, sought any records held by the Hospital in relation to her late son. Her son was born at home in 1960, attended by midwives from the Hospital. Sadly, he died later that day in the Hospital.

The Hospital's decision, dated 25 September 2015, released a small number of records to the applicant. It refused access to a paediatric chart under section 15(1)(a) of the FOI Act, on the basis that, having taken all reasonable steps to look for it, the chart could not be found. The applicant sought an internal review of the Hospital's decision on 3 October 2015. She maintained that further records, including a paediatric chart, should have been found.

During its internal review, the Hospital found a small amount of further information relating to the applicant's son. It released these details on foot of its internal review decision, dated 27 October 2015. However, it told the applicant it was unable to find further records, including a paediatric chart.

On 2 November 2015, the applicant made a request to this Office for a review of the Hospital's decision. She contended that further records, including a paediatric chart, should be found.

In the course of this review, the Hospital located and released the paediatric file, which contained a small number of records. The circumstances of this are detailed later in this decision. Having regard to the reasons why the file was not found sooner, the applicant argued that the Hospital should carry out further searches.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the Hospital and the applicant, and to copies of the records that the Hospital found, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether the Hospital has justified its refusal of access to further records of relevance to the applicant's request, on the basis that such records cannot be found after all reasonable steps have been taken to look for them.

Findings

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. I should explain that in any case involving section 15(1)(a) of the FOI Act, a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances this Office is unlikely to require a public body to continue searching indefinitely for those records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).

Finally, this Office has no remit to examine, or make findings on, whether or not the Hospital created all records that it should have created in relation to its care of the applicant's son in 1960, or to determine whether or not the Hospital should have ensured that it retained all such records. Furthermore, while the applicant is clearly unhappy with the level of detail in the various records that have been found to date, this Office has no remit to consider this issue.

Section 15(1)(a)

The searches involved
The Hospital's position is that it has taken all reasonable steps to look for records of relevance to the applicant's request. It has relied on section 15(1)(a) of the FOI Act, which provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. As I understand it, when any file cannot be found, the Hospital's standard practice is to carry out searches in 28 areas of the Hospital (including archives). These searches are done three times, and are again carried out three times within the following six months. In a case where a file cannot be found further to an FOI request, the three 28-area searches are carried out before the decision issues.

On 4 February 2016, the Hospital provided this Office with a submission setting out the searches it said it had carried out in this case. An Investigator in this Office outlined these searches to the applicant , the details of which I do not intend to repeat in this decision. In summary, the Hospital explained what type of records it would expect to have been created in 1960 in relation to a home birth and the baby's subsequent admission and death, and described the searches it carried out for such records. It also described searches it said it carried out for other records that it said it felt were unlikely to have been created under the circumstances, but which nonetheless might have been created. The Hospital also said that it does not hold other types of records (such as chaplain records, Baptismal records, or mortuary records) from 1960. In its searches, the Hospital also found an Index Card for a person with a similar name to that of the applicant. Not unreasonably, it did not release this record to the applicant. I will comment further on this record later in this decision.

The Paediatric Chart
The Hospital's submission said that if the applicant's son's paediatric chart existed, it would be in external archives, in a particular box containing such charts for children born in 1960.

When looking for an archived file, I understand that, firstly, the Hospital normally asks the external archive company to check the box that would be expected to hold it. If the company does not find the file, the Hospital normally then asks for the box concerned to be delivered to the Hospital, so that Hospital staff can re-examine it. The Hospital's submission said it had "called in" and "reviewed" all charts in the appropriate box but that the file was not found. It subsequently agreed, at this Office's suggestion, to search the two other boxes of archived 1960 paediatric records, in case the file had been mis-filed. The applicant's son's chart was then found - in the box in which it should have been. The Hospital told this Office that the wrong box number had been given to the archive company at the outset, and so the archive company checked the wrong box three times. It also stated that the Hospital had not retrieved the box concerned from the archive company. Furthermore, the internal review in this case did not examine the searches for the paediatric file. Finally, the Hospitals' submission to the Commissioner was made on the assumption that procedures for searching and retrieving boxes held in external archives had been complied with.

Further Searches
Understandably, under such circumstances, the applicant said she wanted this Office to direct the Hospital to carry out further searches. I am very concerned that, despite the Hospital's very comprehensive search policies, the searches actually carried out by the Hospital for the 1960 paediatric records were not as described in its submission to this Office.

An Investigator from this Office met with the Hospital to discuss what had happened. She also conducted spot checks of some of the records that the Hospital's submission said were searched. I wish to make it clear at this point that the Investigator did not examine each and every aspect of the searches the Hospital said it had carried out. I do not believe it was necessary for her to have done so nor does this Office intend to carry out searches for records as a matter of course in similar cases, or to visit public bodies to inspect, or check, the searches they say they have carried out.

The Investigator examined the Labour Ward Book for 1960 (which records deliveries in the Hospital), Index Cards for patients with surnames beginning with the same first four letters of the applicant's and with a slight variation thereof (in case of basic spelling mistakes), and the Hospital's spreadsheet of 1960 maternity files. While also finding the Index Card for the person with a very similar name to the applicant (who had apparently given birth in late 1959 and who had a different address to the applicant), the Investigator's spot checks found no reference to any files or entries relating to the applicant and her 1960 delivery.

On foot of this meeting, the Hospital agreed to search for a 1959 maternity file in the name on the Index Card mentioned above, to rule out the possibility that the applicant's 1960 records might have been filed there. However, hospital staff believed that it was unlikely that a chart would have been created for the applicant's home delivery in any event.

The Hospital said it could not find any 1959 maternity chart in either the name on the Index Card, or in the applicant's name. However, it found a Labour Ward Book entry for the 1959 delivery. While the entry contains the same patient number as on the Index Card, the person's name in the Labour Ward entry is spelt the same way as the applicant's. On the basis of all the information available to it, however, the Hospital said it was not satisfied that this entry related to the applicant, and in particular to her FOI request. I have no basis to disagree with the Hospital's position.

In the meeting with the Investigator, the Hospital said that its earlier electronic searches had highlighted an appointment attended by the applicant in the late 1990s. It agreed to check any records it held relating to that appointment in the unlikely event that they might include records from the 1960 home delivery. The Hospital found the relevant gynaecology chart. It said that one page in the chart made a brief reference to the applicant's 1960 delivery, as part of her obstetric history. I have looked at the page concerned, and I have no basis to disagree with the Hospital's view that this record is not what the applicant requested. In any event, the Investigator notified the applicant of this and it is open to her to contact the Hospital to obtain the record if she wishes.

I have given careful consideration to the possibility that other searches that were also said to have been carried out might not have been conducted. However, given that the Hospital found records of relevance to the request at both decision and internal review stages, as well as a further record of possible relevance (the Index Card), it clearly carried out other searches described in its submission.

Furthermore, while it is disappointing that the applicant's son's paediatric file was found late in the FOI process, the fact is that Hospital did find it. The Hospital has been very frank with this Office about the reasons for the delay in finding the chart. Its staff have cooperated fully with this review. It has apologised for the errors and has assured this Office that it will review its procedures for searching for records and that, in particular, it will comply with its own procedures for checking externally archived records. It has also said it will ensure that internal reviewers will examine all aspects of the appeal before them (which the Hospital says is normally the case). Accordingly, I do not expect similar issues to arise in future reviews.

I am unable to identify further specific searches that the Hospital should carry out in this case. I do not believe that the FOI Act requires me to direct the Hospital to indefinitely carry out general searches for the records, or to search new locations, or types of files, without there being some reasonable possibility that they hold records of relevance to the applicant's request. I must also have regard to the fact that policies and practices for creating, filing, and retaining records in 1960 would have been very different to what would be expected in 2016. While the Hospital is unable to say categorically if any records from 1960 have been destroyed in the intervening years, and I understand that it holds some records going back to the late 1800s, it seems possible that further records that might have been created in relation to the applicant's delivery and to her son could have been destroyed and/or lost.

Having given very careful consideration to the circumstances of this case, and having regard to the Hospital's intention to carry out three further 28-area searches in the next six months as is its usual procedure, I am satisfied that the Hospital has demonstrated that it has now taken all reasonable steps to search for records relevant to the applicant's request.

I find, that section 15(1)(a) of the FOI Act applies to any further records of relevance to the applicant's request that may exist. In making this finding, I expect that if further records were to come to light at any stage, the Hospital would inform the applicant and consider them for release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's refusal of access to further records of relevance to the applicant's FOI request, under section 15(1)(a) of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator