Case Number: 170045

Whether the Hospital was justified in deciding to refuse access to the applicant's birth records under section 15(1)(a) on the ground that they 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 Hospital on 13 July 2016 for all records relating to her birth. On 29 July 2016, the Hospital informed the applicant that it was granting her request by releasing the only record it had located relating to her birth. On 23 August 2016, the applicant sought an internal review of that decision following which the Hospital refused the applicant's request for further records under section 15(1)(a) on the ground that no further relevant records exist or can be found. On 27 January 2017, the applicant sought a review by this Office of the Hospital's decision.

During the course of this review, Ms McCrory of this Office provided the applicant with details of the Hospital's explanation as to why it could not locate records relating to her request and outlined her view that the Hospital was justified in deciding that the records sought did not exist or could not be found. As the applicant has indicated that she requires a formal decision on the matter, I consider it appropriate to conclude this review by means 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 both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant's request for further records relating to her birth on the ground 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 record may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. The Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

It seems to me in this case that it was the record management policies of the Hospital both past and present that were relevant in the making of the decision by the Hospital, rather than searches conducted on foot of the applicant's request. In a submission to this Office, the Hospital provided details of decisions taken in 1982 and 1984 regarding record retention in the Hospital. In summary, the Hospital stated that due to storage difficulties, a decision was made by the Hospital Board to microfilm only those records which dated from 1968 onwards. It stated that records dated prior to 1968 were likely destroyed around 1994, as at that time records were only retained for 25 years at most under the Hospital's record retention policy.

The Hospital also stated that it had conducted searches in previous cases where applicants sought records dated prior to 1968, but these were unsuccessful. In essence, the Hospital's position is that all pre-1968 birth records have been destroyed, and therefore no searches were required to be conducted in this instance as the applicant was born in 1964. In the particular circumstances of this case, and having regard to the information provided to this Office concerning its record management practices, I find that the Hospital was justified in refusing to grant access to further relevant records on the ground that no such records exist.

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 on the ground that these records do not exist.

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