Whether the HSE was justified in its decision to refuse the applicant-�s request for access to certain additional medical records other than those already released to her on the ground that no further relevant records exist or can be found

28 November 2018

Background

On 8 May 2018, the applicant made a request to Cork University Hospital (CUH), which is a HSE hospital and incorporates Cork University Maternity Hospital (CUMH), for a copy of her medical records. As the request did not specifically refer to the FOI Act, the HSE processed the request for general medical records under its Routine and Administrative Access Policy, while it processed the request for mental health records under the FOI Act. The general medical records were released on 22 June 2018.

On 3 July 2018 the applicant wrote to the HSE stating that there had been a delay in processing her request and outlining her view that there were additional records not received.  In response, the HSE informed the applicant that, as it had not issued an original decision within the statutory time-frame, she had the right to seek an internal review.  On the same day, the applicant submitted her internal review request to the HSE.

On 11 July 2018, the HSE, through the CUH Acute Mental Health Unit, issued its internal review decision granting the applicant access to her psychiatric records. On 2 August 2018, the applicant sought a review by this Office the HSE's decision on the ground that she had not received all relevant records.

Although the applicant's request was processed both administratively and under FOI, it appears that the HSE did not clarify this approach with the applicant and that she was of the view that the entire request was being processed under FOI. In the circumstances, I consider the applicant-�s request of 8 May 2018, for all medical records, to be the original request for the purpose of this review.

During the course of this review, the applicant narrowed the scope of the review to her gynaecological and breast clinic records. Following correspondence with this Office, the HSE located and released further records to the applicant, comprising her maternity and colposcopy charts as held by CUMH.

The HSE also provided this Office with details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed her 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.  She invited the applicant to make a further submission on the matter.

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision. 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 the applicant-�s request for access to further gynaecological and breast clinic records on the ground that no such records exist or can be found.

Preliminary Matters

Section 11(8) of the FOI Act provides that the Act does not prohibit or restrict an FOI body from giving access to a record (including an exempt record) outside the Act "where such publication or giving of access is not prohibited by law." This Office supports a proactive approach by FOI bodies to the disclosure of information in an open and accessible manner on a routine basis outside of FOI.

I acknowledge that the HSE and CUH/CUMH sought to adopt this proactive approach by releasing some records to the applicant under administrative access.  Nevertheless, as other records were dealt with under FOI, some confusion arose around the approach taken to process the request, whereby further clarification had to be sought from the HSE, even after this Office had accepted the request for review.

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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.  Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

In its submissions to this Office, the HSE provided details of the searches conducted to locate the records sought by the applicant and the record storage practices within CUH/CUMH in relation to relevant records (breast clinic notes, gynaecological records, maternity records and colposcopy records). 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 breast clinic notes and CUMH gynaecological records are filed on the General Medical Record Chart, which is a physical chart shared between CUH and CUMH.  It stated that CUH carried out searches using the applicant-�s medical reference number as a search term, located the chart in its Medical Records Library, and released the chart in full to the applicant.

With regard to maternity and colposcopy records, the HSE stated that these are filed on two separate charts which are solely under the remit of CUMH and are not shared with CUH.  It stated that, given the date of those records, the charts are stored in physical form only and held in CUMH-�s off-site storage library.  It stated that CUMH carried out searches, again using the applicant-�s medical reference number as a search term, located the two charts, and released them in full to the applicant.

In her submissions to this Office, the applicant argued that there was information missing from the medical records she had received, including records pertaining to visits with a named medical professional.  The HSE is of the view that all relevant records have been released to the applicant and that she may have had further engagement with the named individual in a different voluntary hospital.  Ms Swanwick informed the applicant that such records, if they exist, do not come within the scope of this review, which is limited records held by CUH/CUMH.

The general thrust of the applicant-�s arguments is that, having regard to the nature of her engagements with CUH/CUMH, additional records should exist.  The HSE's position is that no such records exist, apart from the records already released.  While the applicant may be unhappy with the HSE-�s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist.  The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist.  

Having considered the details of the searches undertaken and the record storage practices within CUH/CUMH, I am satisfied that the HSE 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 HSE 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.

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 gynaecological and breast clinic records 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