Whether the HSE was justified in its decision to refuse access to records containing information concerning a Limerick hospital from the period 1940 to 1980, on the ground that relevant records were created before the effective date of the FOI Act 

12 October 2018   

Background

On 15 February 2018 the applicant submitted a five part request to the HSE for certain information concerning children born at St Ita's Hospital (the Hospital) during the period 1940 to 1980. On 4 April 2018 the HSE issued a decision in which it refused the applicant-™s request on the ground that no relevant records containing the information sought could be located. On 9 April 2018 the applicant sought an internal review of the HSE-™s decision following which the HSE affirmed its decision to refuse the request, but on the basis that the FOI Act does not apply to records created before the effective date of the FOI Act (21 October 1998 in the case of the HSE). On 9 May 2018, the applicant sought a review by this Office of the HSE-™s 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 outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope of Review

This review is concerned with whether the HSE was justified in refusing the applicant-™s request for access to records concerning children born at the Hospital during the period 1940 to 1980 on the ground that no right of access to records that might contain the information sought exists as they were created before the effective date of the Act, i.e. before 21 October 1998.

Analysis and Findings

The applicant sought statistical information about children born at the Hospital from 1940 to 1980, namely how many were born, died, were adopted, and were baptised. He also asked if there were unpaid mothers of those children working at the hospital. 

It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. 

It is also important to note that the right of access to records held by public bodies is generally limited to those that were created after the effective date of the FOI Act. In the case of the HSE, the effective date is 21 October 1998. In response to queries from this Office, the HSE stated that it holds no relevant records created after 21 October 1998. Having regard to the nature of the information sought by the applicant and the time frame for which that information is sought, it is likely that any records that might contain such information would have been created before 21 October 1998.  As such, no right of access would exist in respect of any such records unless section 11(5) applies. 

Section 11(5) provides that access to records created before the effective date may be granted (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester.  

In an email dated 18 June 2018, Ms Swanwick of this Office informed the applicant of her view that the HSE was justified in refusing access to records sought, on the ground that the Act does not provide for a right of access to records created before 21 October 1998 and she invited the applicant to make a further submission. The applicant provided no further submissions to this Office and he has not identified any record created after 21 October 1998 that cannot be understood without access to records created before this date, nor has he suggested that the records sought relate to personal information about him.  I find that section 11(5) does not apply.

In conclusion, therefore, I find that the HSE was justified in refusing the applicant's request on the ground that any records containing the information sought would have been created before the effective date of the FOI Act and that the Act does not for provide a right of access to such records.

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 on the ground that any records containing the information sought would have been created before the effective date of the FOI Act and that the Act does not for provide a right of access to such records.

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