Case Number: 160417

Whether the Hospital was justified, under section 15(1)(a), in refusing to release records relating to a telephone conversation between the Hospital and a named doctor, on the basis that they do not exist

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 was a patient in the Hospital who sought access to medical treatment by a doctor in the UK (Dr X) through the Treatment Abroad Scheme. He was notified by the Hospital that this was not possible as Dr X no longer worked for the National Health Service (NHS) in the UK. The applicant made a request to the Hospital seeking access to correspondence it received stating that Dr X no longer worked for the NHS. The Hospital informed him that no letter or email had been received from Dr X in this regard and it appears that the applicant concluded from this that Dr X/his secretary had spoken to a staff member of the Hospital during a telephone conversation.

Accordingly, he made a request on 5 July 2016 for access to records held by the Hospital containing the following information:

Details of the doctor who spoke to Dr X/his secretary by telephone
Details of the secretary in the Hospital who took a telephone message from Dr X/his secretary
The date and time of the telephone conversation in question
All records relating to information received from Dr X/his secretary by the Hospital

On 8 August 2016, as the Hospital had not replied to his request, the applicant sought an internal review on the basis of a deemed refusal. The Hospital issued a decision on 31 August 2016, refusing his request on the basis of section 15(1)(a) of the FOI Act. The applicant applied to this Office for a review of that decision on 3 October 2016.

I note that during this review, Ms Sandra Murdiff of this Office contacted the applicant and explained her view that the Hospital's decision to refuse his request was justified on the basis that the records sought did not exist. She asked the applicant if he wished to proceed with the review but he did not comment. Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to correspondence between the applicant and the Hospital in relation to his request and to correspondence between this Office and both the applicant and the Hospital on the matter.

Preliminary Matters

In his application to this Office, the applicant stated that he wished to make a formal complaint in relation to how the Hospital had dealt with his FOI request. It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Scope of Review

This review is solely concerned with whether the Hospital's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. 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 decision maker concluded that the steps taken to search for records were reasonable. This Office does not normally search for records.

Following queries from this Office, the Hospital stated that a doctor in the Hospital (Mr Hannon) wrote to Dr X on 1 March 2016 requesting an assessment of the applicant. It also contended that, as no reply was received, the Hospital's Medical Director conducted an internet search to confirm whether Dr X still worked in the hospital concerned. The Director concluded from the results of that search that Dr X no longer worked for the NHS. Accordingly, Professor Plunkett wrote to the applicant on 18 April 2016 stating that while he had been referred to Dr X for an assessment, it now appeared that Dr X would not be in a position to treat the applicant as he "appears to have retired" from the NHS.
During this review the Hospital has maintained its position that there was no telephone call and accordingly, no records within the scope of the applicant's request. The Hospital has stated that the applicant's file has been searched and that there is no record relating to contact with Dr X by the Hospital other than the letter dated 1 March 2016, which has already been released to the applicant. I have no reason to doubt this.

While the applicant may not be happy with this explanation, it seems to me that the Hospital has taken reasonable steps to locate relevant records and I am satisfied with its explanation as to why none have been located. Accordingly, I find that the Hospital's decision to refuse the applicant's request was justified on the basis that no relevant records exist.

I should add that I have been informed that the situation has changed since the applicant made his FOI request. I understand that Dr X has been located and the applicant's assessment by him has been approved by the HSE under the Treatment Abroad Scheme.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Hospital's decision to refuse the applicant's request on the basis of 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