Whether the Hospital was justified in refusing the applicant's request for her mental health care records under section 15(1)(a) of the FOI Act on the ground that they cannot be found  can be found after all reasonable steps to ascertain their whereabouts have been taken

13 July 2018 

Background

On 20 February 2018 the applicant sought access to her medical records held by the Hospital, including its Mental Health Social Work clinic. On 14 March 2018 the Hospital released a copy of the applicant-™s healthcare record. It refused access to records relating to the applicant-™s care in the clinic on the ground that they could not be located. Following a request for internal review, the Hospital released one further record that had been located in the aforementioned clinic relating to speech therapy services. The Hospital affirmed its original decision in respect of any mental health care records on 16 April 2018. On 18 April 2018 the applicant sought a review by this Office of the Hospital's decision. 

During the course of the review, this Office provided the applicant with details of the Hospital's submissions regarding the searches it conducted in response to her request. Ms Whelan of this Office informed the applicant of her view that the Hospital had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records and that it was justified in refusing the request on the ground that the additional records sought cannot be found. She invited the applicant to make a further submission on the matter. As the applicant has not responded to date I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Hospital as set out above and to the communications between this Office and both the Hospital and the applicant on the matter. 

Scope of Review

This review is concerned solely with the question of whether the Hospital was justified in refusing access, under section 15(1)(a), to the applicant's mental health care records the ground that the records sought cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 case involving section 15(1)(a) 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 such cases includes the steps actually taken to search for records. It also comprises 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. 

In its submissions to this Office, the Hospital provided details of the searches conducted in response to the applicant's request. In short, the Hospital stated that records created during the relevant period were microfilmed and are held in off-site storage in three boxes. The records held in these boxes are referred to by index cards held in the Hospital in strict alphabetical order. An index card was located in respect of the applicant and the boxes of microfiches were eventually retrieved and searched by the Hospital. While this search resulted in a number of records being released to the applicant, the mental health care record which is the subject of this review could not be located despite all boxes being searched. The Hospital informed this Office that the relevant individuals responsible for the applicant-™s care are now retired and did not keep their own records. 

The Hospital also provided this Office with the relevant records retention policy and stated that this policy is currently being reviewed. The Hospital stated that there is no evidence that the records have been destroyed and it accepts that the records did at one point exist, but that in any event it cannot be located after all reasonable steps to find it. 

In this case it appears that the record concerned was at one point held by the Hospital but has since been misplaced. While this is very unfortunate and while I can fully understand the applicant's frustration and disappointment, the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the records. It is important to note that it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records. 

Having considered the details of the searches undertaken, I am satisfied that the Hospital has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. I find, therefore, that the Hospital was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. If, at some stage in the future, the Hospital locates the relevant records, I expect it to immediately notify the applicant of their availability.

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 to the applicant's mental health care records under section 15(1)(a) of the FOI Act on the ground that the records sought cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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