Case No. 160083

Whether the Hospital was justified in its decision to refuse access to additional records relating to the applicant's birth on the ground that no further records apart from those already released 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 3 December 2015, the applicant submitted a request to the Hospital for access to records that might confirm the date and time of her birth in the hospital as she believes that she may have been born on a day other than that stated in her birth certificate, i.e. 13 May 1956. The Hospital issued a decision on 14 December 2015, in which it stated that it had located an entry from its 1956 labour ward book which indicated that the applicant's mother gave birth to a female child on 13 May 1956 at 20:30 hours. On 22 December 2015, the applicant sought an internal review of the Hospital's decision as she was of the view that the information provided may be incorrect. On internal review the Hospital located a further relevant record, an index card belonging to the applicant's mother, which contained details of the applicant's birth in the Hospital that were consistent with the entry in the labour ward book. It also informed the applicant that it could not locate the applicant's paediatric chart or her mother's obstetric chart. On 22 February 2016, the applicant sought a review by this Office of the Hospital's decision that no paediatric records relating to her can be found.

During the course of the review, the Hospital provided this Office with details of the searches undertaken to locate the applicant's paediatric records and of its relevant record management policy, as it pertained at the time. Ms Lydia Buckley of this Office subsequently contacted the applicant and provided her with details of these searches. She also informed the applicant of her view that the Hospital was justified in deciding that no relevant paediatric records can be found, having taken all reasonable steps to locate them. As the applicant indicated that she requires a formal decision on the matter, I consider it appropriate to conclude this review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Hospital and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Hospital.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse access to the applicant's paediatric records on the grounds that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Preliminary Matter

During the course of the review the Hospital contended that the paediatric records now sought did not come within the scope of the applicant's initial request and that the applicant was simply seeking confirmation of her time and date of birth. While this may well have been the applicant's intent, the Hospital is aware that the FOI Act confers a right of access to records as opposed to a right of access to information and this Office expects that any such requests for information should, where possible, be treated as requests for records that might contain the information sought. Indeed, the applicant specifically made reference to "records in the Rotunda that might be of use to settle [her] information" in her FOI request. It seems to me that paediatric records relating to the applicant, if they existed, would reasonably be expected to contain information relating to the applicant's time and date of birth.

In any event, the Hospital has confirmed that it searched for the paediatric records to cross reference against the information already located and provided to the applicant. In the circumstances, I am satisfied that this Office is entitled to review the Hospital's decision that the records sought do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to information may be refused if the record containing that information does not exist or cannot be found, after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases 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. The evidence in "search" cases consists of the steps actually taken to search for 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 it has taken all reasonable steps to locate the relevant records. This Office's understanding of its role in search cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner(available on this Office's website, www.oic.gov.ie).

In response to a request from this Office, the Hospital provided details of the searches undertaken to locate paediatric records relating to the applicant and information about the relevant records management practices, as they pertained at the time. As outlined above, Ms Buckley of this Office has already provided the applicant with the details of these searches. In summary, the Hospital stated that it manually searched the archive box that contains the existing paediatric charts from 1956. It also searched the various locations within the hospital where it would expect to find paediatric records. These other locations include the pre-natal and post-natal wards. The Hospital stated that while these searches were conducted on three separate occasions by two different staff members, no records were located.

The Hospital noted that only a limited number of individual paediatric healthcare records exist from 1956. The hospital stated that it did not know if other records had existed in the past, and were subsequently destroyed, or if individual patient records were only generated in limited circumstances. The Hospital also explained that once a baby is discharged and goes on to develop heath issues, they would normally receive treatment in another hospital, given that the Hospital is a maternity hospital rather than a children's hospital.

Having considered the searches conducted by the Hospital to locate the applicant's paediatric records, as outlined above, I am satisfied that all reasonable steps have been take to locate the relevant records. I find, therefore, that Hospital was justified in its decision to refuse the applicant's request on the grounds that no records exist or can be found, in accordance with section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital 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