Case Number: 150449

Whether the HSE was justified in its decision to refuse access to additional GP records relating to the applicant other than those already released on the ground that no further records 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 20 October 2015 the applicant submitted a request to the HSE for his medical records for the past three years from four named doctors of a particular GP practice.

On 20 November 2015 the HSE stated that a copy of all of the applicant's records had already been given to the applicant's wife in August 2015. It appears that the applicant treated this letter as a decision on his request and on 2 December 2015 he sought an internal review of the HSE's decision, stating that he was unhappy with the medical records he had received from the GP practice and that the records did not contain details of all times, dates and procedures carried out by the named doctors.

On 15 December 2015 the HSE issued a decision on the request in which it decided to grant access to "all of the records" held in the GP practice. The applicant then wrote to this Office on 22 December 2015 seeking a review of the HSE's decision. Subsequently, on 4 January 2016, the HSE issued an internal review decision in which it affirmed the decision of 15 December 2015. The HSE went on to refuse the applicant access to further records relevant to his request under section 15(1)(a) of the FOI Act on the ground that no further records exist or could be found.

During the course of this review the HSE identified and released to the applicant two further records relevant to the applicant's request, namely the applicant's prescription history and a summary of his attendance history at the GP practice in question. The HSE stated it did not hold any further records relevant to the applicant's request. Subsequently, Mr Benjamin O'Gorman of this Office informed the applicant of the searches the HSE conducted in attempting to locate relevant records and of his view that the HSE was justified in its decision to refuse the request on the basis that the records sought do not exist or cannot be found. The applicant indicated that he did not accept the explanation given by the HSE as to why the records could not be found. 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 HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the applicant's request for further GP records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI 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).

In its submission to this Office the HSE provided comprehensive details of the searches it undertook in an effort to locate the record at issue. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches. Therefore, while I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this decision.

It appears that the applicant's primary concerns relate to the absence of records relating to his attendance at the practice in 2013 for a medical procedure on his ear. The HSE stated that there was no record of the applicant's attendance for the aforementioned procedure in either its electronic or paper attendance systems and that it could not explain why this was the case. It stated that as all patient files were computerised at that stage, no records would have been misplaced but that it is possible in such a busy practice that, due to human error, the record of the consultation in question may have been inadvertently omitted. It stated that there is no possibility that records were deleted, altered or destroyed as they are maintained on a computerised system and cannot be deleted. The audit log released to the applicant confirms that no electronic record of the attendance in question exists. The HSE emphasised in its reply to Mr O'Gorman that this did not mean that the applicant had not attended the GP practice for the procedure specified, but rather it could not find any records relating to that attendance.

While the applicant is understandably disappointed with the HSE's response, this review is limited to considering what records actually exist as opposed to those that should exist. Having reviewed the steps taken by the HSE to locate the record at issue and to its explanation of its record management practices in so far as they relate to the records sought, I am satisfied that the HSE has taken all reasonable steps to locate all relevant records and I find that it was justified in refusing access to additional records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse to release further records relevant to the applicant's 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.

Stephen Rafferty
Senior Investigator