Whether the Hospital was justified in deciding to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to a meeting that took place on 6 January 2017 between the applicant and the Hospital on the ground that no further relevant records exist

Case 170344

Background

On 9 January 2017, the Hospital received a request from the applicant's solicitor for all records relating to the applicant and her deceased son. The letter included a request that the Hospital preserve CCTV footage of its entrance hall and the labour ward corridors for a specified date. In a subsequent letter of 10 January 2017, access was also sought to any notes or memoranda of a meeting that took place between the applicant and the Hospital on 6 January 2017.

On 31 January 2017 the applicant's solicitor sent a further letter to the Hospital limiting the time-frame for the required CCTV footage to "a copy of the footage from 5am to 8am on the morning" in question. In an email of 23 February 2017 to the applicant's solicitor, the Hospital's FOI Liaison Officer informed the applicant's solicitor that the medical records were available for collection, that the "notes/letter from the 6th January meeting are awaiting sign off" and that the Hospital was taking instruction on the CCTV matter.

On the same date, the applicant's solicitor sought an internal review of the deemed refusal of the request as a decision had not issued within the statutory time-frame. On 7 April 2017, the applicant's solicitor submitted an application for review to this Office, wherein he stated that a number of matters remained outstanding and were the subject of the application, namely a copy of the CCTV footage and copies of written notes of the meeting of 6 January 2017.

Following correspondence with this Office, the Hospital's FOI Liaison Officer wrote to the applicant's solicitor on 19 May 2017, stating that certain records, including "Notes of the meeting with the Master and your Clients" had already been released. He also explained that the CCTV footage was with a specialist external agency that was processing the footage and that he was awaiting details of the time-frame and costs. By letter dated 23 May 2017, the applicant's solicitor informed the Hospital that while he had received a retrospectively drawn note of the meeting of 6 January 2017, he was seeking the contemporaneous notes of that meeting and "all other notes and emails wherein our clients and their son ... are mentioned".

On 30 May 2017, the Hospital wrote to the applicant's solicitor and enclosed a copy of the quotation it received for two options relating to the CCTV footage. On 2 June 2017, the applicant's solicitor confirmed that he was happy to proceed with the first option. On 22 June 2017, the Hospital's FOI Liaison Officer informed this Office that a DVD with the CCTV footage sought had issued that morning. By email dated 6 July 2017 to this Office, the applicant's solicitor stated that he had still not received the items set out in his letter of 23 May 2017 to the Hospital. He also stated that he now wished to access further CCTV footage. 

I have decided to conclude this review by means of a formal, binding decision. In carrying out my review, I have had regard to the correspondence described above. I have also had regard to the communications between this Office and both the applicant and the Hospital on the matter during the course of the review.

Scope of the Review

In the application for review that was submitted to this Office on 7 April 2017, the applicant's solicitor clarified that only two matters remained outstanding, namely a copy of the CCTV footage and copies of written notes of the meeting of 6 January 2017. Subsequently, the solicitor was presented with two options relating to the CCTV footage, one of which he accepted, and on foot of which the Hospital released the CCTV footage sought.

I note that during the course of the review, the applicant's solicitor informed this Office that he was seeking access to all records relating to the applicant, including records relating to an ongoing incident review, and that he wished to access further CCTV footage. I also note that this Office subsequently engaged with the Hospital on the question of access to such records. In my view, it was incorrect to do so. The application for review clearly identified the two matters that remained outstanding, one of which (the CCTV footage) was addressed during the review. It is not appropriate, in my view, for this Office to subsequently extend the scope of the review. I would add that it is certainly not appropriate for this Office to consider the question of access to records that did not exist at the date of the original FOI request. 

Accordingly, this review is concerned solely with whether the Hospital was justified in its decision to refuse access to additional records relating to the meeting that took place on 6 January 2017 between the applicant and the Hospital. However, it is open to the applicant to submit a fresh request to the Hospital for any relevant records that are not captured by the scope of this review and to which access has not previously been granted.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records 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.

As outlined above, while the applicant's solicitor acknowledged that he has received a copy of the contemporaneous note prepared following the meeting of 6 January 2017, he continues to seek access to copies of the written notes of the meeting. The Hospital's position is that the records sought no longer exist and that the record already released is the only existing record relating to the meeting. It stated that any handwritten notes had been shredded and therefore no longer existed. It also stated that searches were conducted in the Master's Office and files held by the Assistant Director of Nursing and Midwifery, but no other records related to the meeting were located.

In a further submission to this Office, the Master of the Hospital stated that she took brief notes to assist her as an aide memoir in preparing a note of the meeting. She stated that her handwritten notes, comprising occasional words and shorthand sentences, would not have easily been interpreted by anyone else and that she typed up a note which she believes to be a faithful record of the meeting. She further stated that she has several meetings every day and where she makes notes, it is her policy to translate her notes into a typed and legible form. She stated that she does not retain jotted notes.

Having regard to the explanation provided by the Hospital, I find that it was justified in deciding that no further records relating to the meeting of 6 January 2017 exist. I find, therefore, that it was justified in refusing access to such 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 Hospital to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to a meeting that took place on 6 January 2017 between the applicant and the Hospital on the ground that no further relevant records 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