8 January 2019

Whether the HSE was justified in its decision to refuse the applicant-�s request for access to further records from a named GP Practice relating to him under section 15(1)(a) on the grounds that no further relevant records exist

Background

On 26 February 2018, the applicant submitted a request to the HSE for a copy of his medical records held by a named GP Practice from June 2017 onwards. On 28 March 2018, the HSE part-granted his request, redacting certain information from one page under section 37 of the FOI Act which is concerned with the protection of personal information relating to third parties. 

The applicant sought an internal review of the HSE's decision on the ground that he had not received all relevant records and that the records should not have been redacted. The HSE issued its internal review decision on 21 May 2018 in which it indicated that it had decided to release further records, without redaction, to the applicant. On 24 May 2018 the applicant sought a review by this Office of that decision.

During the course of the review, this Office engaged in quite a number of exchanges of correspondence both with the applicant and with the HSE on certain issues arising. Among other things, the applicant had expressed concerns about the format of records released containing test results and queried whether he had received all relevant records. He argued that it was difficult to understand and interpret the results as released. It came to light that the relevant GP Practice had issued certain test results in a particular format, in line with its general practice for processing FOI requests for records of that nature. However the records released did not comprise the entirety of the records held relating to test results. The GP Practice subsequently released the additional information held relating to the test results which, I understand, ran to a significant number of additional pages of information.

The applicant also raised a number of other issues, all of which were addressed in the exchanges of correspondence and which I do not propose to repeat here. However, I can confirm that I have had regard to all of those exchanges of correspondence in conducting my review.

Scope of Review

It is the position of the HSE that all relevant records held by the relevant GP Practice from June 2017 to the date of the applicant's request have now been released, in full, to the applicant and that no further relevant records exist. Accordingly, the scope of this review is concerned solely with whether the HSE was justified in refusing access to further relevant records on the ground that no such records exist. It is not concerned with whether the HSE should have released records that were created after the date of the applicant's request.

Preliminary Matter

For the benefit of the applicant, it is important to note that the FOI Act does not require a public body 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 (which is not of relevance in this case). Neither does the Act require a public body to provide clarifications of the contents of records, or to include records in its files that a requester believes it should hold. If the body does not hold the record sought and cannot extract the electronically held record by taking reasonable steps, then that is the end of the matter.

Analysis and Findings

Section 15(1)(a)
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 essence, the HSE stated that the GP Practice conducted searches of its software systems for all records related to the applicant. 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 on the electronic medical file. The HSE's position is that no additional information relating to the applicant's file held by the GP Practice exists. 

Having considered the HSE's description of the searches undertaken, and having regard to this Office's various exchanges of correspondence with the parties that I have referred to above, 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.

Finally, I note that Ms McCrory of this Office notified the applicant that the HSE had confirmed to this Office that no redactions were made in the consultation notes per the applicant's contention and explained the reasons for any gaps in those notes. As the applicant has not disputed this and provided evidence to the contrary, I accept the HSE's position that no redactions are contained in the 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 for further records relating to his medical file held by a named GP Practice 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