Case Number: 160191

Whether the HSE was justified in refusing the applicant's request for access to further medical records relating to her hospitalisation in 1968 on the basis that the records do not exist or cannot 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

The applicant submitted a request to the HSE on 24 February 2016 for access to her medical notes relating to an anaesthetic and symphysiotomy procedure carried out in 1968. The HSE decided to grant access to the applicant's medical chart. In its decision of 21 March 2016, it noted that the records had previously been given to her and that no further records were available. The applicant sought an internal review of that decision on 22 March 2016 as she had not received a copy of an x-ray carried out on the date in question, nor had she received all notes relating to the symphysiotomy or the name of the doctor who administered a general anaesthetic. In its internal review decision of 3 May 2016, the HSE decided to refuse the request on the ground that no further records could be located. The applicant sought a review by this Office of the HSE's decision on 25 April 2016.

During the course of this review, the HSE made submissions detailing the searches it carried out for relevant records. Mr Christopher Flood of this Office provided the applicant with details of those submissions and informed her of his view that the HSE was justified in deciding that no further relevant records exist or can be located. The applicant was not satisfied with the HSE's response. Therefore, I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the HSE and the applicant, as set out above. I have also had regard to details of various contacts between this Office and both the HSE and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to further relevant medical records relating to the applicant on the ground that they do not exist or cannot be found after all reasonable steps have been taken to locate them.

Analysis and Findings

Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence, and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search cases" generally consists of the steps actually taken to search for the records, along with miscellaneous other information about the record management practices of the public body, insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

During the course of this review Mr Flood of this Office informed the applicant of the details provided by the HSE of its record management practices and of the searches it undertook to locate all relevant records. While I do not propose to repeat those details in full, I have had regard to them for the purposes of this review.

It appears that the applicant's concerns relate to the absence of records regarding a symphysiotomy she believes she underwent in connection with the birth of her son in 1968. The maternity chart released by the HSE contains no suggestion that such a procedure was carried out. The documentation that the applicant provided to this Office suggests that there is conflicting medical evidence as to whether or not it was. The medical evidence presented by the applicant dates from 2012 onwards.

This Office has no function in determining whether or not the procedure was carried out. As I have explained above, our role is confined to considering whether the HSE has taken all reasonable steps to locate the records sought, if they exist. The HSE stated that it searched all of the locations where the records sought might be expected to be found, including on-site and off-site storage facilities. The HSE said that the applicant's patient record number was easily identified and her medical records for the relevant dates were located.

Essentially the HSE's position is that there are no records relating to a symphysiotomy as there is no indication on the medical chart that such a procedure was carried out. On the matter of the absence of an x-ray and the name of the doctor who administered a general anaesthetic, the HSE stated that the applicant's medical records make no mention of an x-ray having been carried out at the time and that, in any event, all x-rays from the relevant period were destroyed confidentially in June 2011, in accordance with the HSE's records retention policy. It also stated that it is not recorded in the applicant's notes who administered the general anaesthetic.

I know that the applicant will undoubtedly be disappointed with the outcome of the HSE's searches. However, the FOI Act does not require absolute certainty about the existence of records because situations invariably arise where records cannot be found. Rather, it requires that the body concerned takes all reasonable steps to locate the relevant records.

Having regard to the HSE's submissions and to the documentation provided by the applicant, I am satisfied that the HSE has taken all reasonable steps to locate all relevant records. I find, therefore, that the HSE was justified in its decision to refuse the applicant's request on the basis that no further records exist or can be found after all reasonable steps have been taken to locate them.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

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