14 December 2018

Whether the HSE was justified in its decision to refuse the applicant-�s request for access to further records relating to him from named psychiatric services under section 15(1)(a) of the FOI Act on the ground that no additional relevant records exist or can be found

Background

The applicant in this case had made a previous request in January 2017 for his medical records, and received records on foot of that request in February of that same year. On 26 February 2018, the applicant submitted a new request to the HSE for a copy of his medical records from named HSE Psychiatric Services from January 2017 onwards and from whenever created in the case of records relating to his engagements with two named individuals. He stated that he did not receive records relating to his engagements with the two individuals concerned on foot of his previous request.

As the HSE failed to issue a decision on the request within the required statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 23 March 2018, in which he identified a number of records he believed to exist but which had not yet been provided to him. The HSE issued its internal review decision on 30 April 2018 in which it stated that all records on file had been provided to the applicant. On 2 May 2018 the applicant sought a review by this Office of that decision.

During the course of this review, the HSE provided this Office with details of the background circumstances of the case and the searches carried out to locate all relevant records. Ms McCrory of this Office outlined the details of those searches to the applicant and informed him of her view that the HSE was justified in refusing access to additional records on the ground that no further relevant records exist or could be found. The applicant provided further submissions to this Office, following which Ms McCrory reverted to the HSE for clarification and further information. She then provided this clarification to the applicant, on foot of which he made further submissions. Having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. 

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in refusing access to further records relating to the applicant's medical files from named HSE Psychiatric Services on the ground that such records 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 records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. 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 FOI body, insofar as those practices relate to the records in question.

In correspondence with this Office, the HSE noted that the applicant's last visit with the services was on 27 January 2017. It stated that notes and letters related to this were included in the records released to the applicant in February 2017 on foot of his FOI request, and therefore its position at the time was also its current position, namely that all records held on file had been released to him. It stated that no further records were created after 27 January 2017, and therefore if the applicant's position was that further records should exist, the searches conducted in 2017 were relevant to this review, and it provided details of same. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  

In short, the HSE stated that it searched the applicant's inpatient healthcare file and outpatient healthcare file based on the scope of his request. It also stated that it consulted all relevant staff in the course of the review, and its position was that all relevant records would be kept with the applicant's medical files, and no extraneous records would be kept in other locations or with specific members of staff.

In essence, the applicant's argument is that further records, specifically medical/clinical notes, should exist in relation to certain interactions between both staff and himself, between members of staff, and between staff and other people. For example, he highlighted a letter that suggested HSE staff had consulted with a number of his family members, and stated that notes should exist related to these consultations.

The HSE's position is that no additional information relating to the applicant's medical files exists. The HSE stated in its submission that any such notes would be kept with the applicant's medical file. It stated that, therefore, if no such notes are contained on the file, it is the HSE-�s position that these do not exist. In response to the applicant's contention, I note that the HSE stated it also consulted with the member of staff who wrote the letter, and he explained that the reference to family members was a general statement, and it was his understanding that HSE staff may have only consulted with the applicant's mother in the course of their dealings with the applicant. I note that the applicant in his correspondence requested that this Office ask the HSE to direct a re-drafting of this letter by the member of staff. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the manner in which the HSE deals with its clients, or the contents of the records it creates in this instance when the matter for review is the refusal of access to further records under section 15(1)(a). If the records sought do not exist then that is the end of the matter, regardless of whether or not a requester believes that certain records should exist based on his or her views as to what constitutes good administrative practice. 

The applicant has presented no evidence to support his argument that additional records relating to his medical files exist, apart from his views on what should exist. Furthermore, he has presented no evidence other than his own recollections when contending that there are records that the HSE has not provided to him. In the absence of such evidence, I have no reason to doubt the HSE's submission in relation to the records held on file and the adequacy of the searches and staff consultations conducted. 

Having considered the HSE's description of the searches undertaken and of the consultations that took place with members of staff, I am satisfied that it has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request.  I find, therefore, that the HSE was justified in refusing access to any additional records on the ground that no further relevant records exist.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant-�s request for further records relating to his medical files from named HSE Psychiatric Services under 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.

Stephen Rafferty
Senior Investigator