Whether the HSE was justified in its decision to refuse the applicant’s request for access to additional records pertaining to the processing and analysis of her blood samples and related correspondence, other than those already released under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found

21 November 2019

Background

On 7 November 2018, the applicant submitted a request to the HSE for access to records held by a named Hospital, namely;

1. All information pertaining to the processing and analysis of her blood samples at the Hospital in 2017.
2. Details of any correspondence and contact between any member of staff members involved in the analysis of her blood samples in 2017 and doctors at a named clinic between July 2017 and 7 November 2018.

On 12 December 2018, the HSE granted access to a number of records relating to Part 1 and refused Part 2 under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. The records released included records of two tests carried out at the Hospital. On 16 December 2018, the applicant sought an internal review of the HSE’s decision, suggesting that there were additional records not received. She also sought clarification of a number of related matters.

In response, the HSE emailed the applicant on 24 December 2018 in which it provided details of the dates and times of correspondence with her GP via Healthlink, regarding four tests that had been carried out, including two that had been carried out by St. James’s Hospital. It also indicated that a hard copy record had been posted to her GP in respect of two of those tests.

On 18 January 2019, the applicant sought a review by this Office of the HSE’s decision. Subsequently, the HSE issued a formal internal review decision wherein it refused the applicant’s request for additional records under section 15(1)(a) on the ground that no further relevant records existed or could be found.  On 24 January 2019, the applicant informed this Office that she wished the review to proceed.

During the course of the review and following correspondence with this Office, the HSE located and released further records to the applicant, comprising hard copy results of the two tests that had been carried out by St. James’s Hospital and screenshots of certain information held electronically on the Hospital’s Laboratory Information System (LIS) relating to those two tests.

In response, the applicant suggested that additional relevant records had not been released. Further exchanges of correspondence between this Office and the HSE followed. I have now concluded my review of the HSE’s decision in this case. In carrying out 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

This review is solely concerned with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to additional records coming within the scope of the applicant’s request other than those already released to her (including those released during the course of the review) on the ground that no further relevant records exist or can be found.

Preliminary Matters

Before I address the substantive issue arising in this case, I would like to comment upon the manner in which the HSE processed the original request that is the subject of this review and upon the manner in which it engaged with this Office during the review.

The fact that the processing and analysis of blood samples is essentially managed and recorded by the Hospital electronically on at least two separate systems added a certain level of complexity to the review in circumstances where this Office is unfamiliar with the systems and processes in question. In such cases, this Office relies upon the body to provide a clear and sufficiently detailed explanation of its systems and processes to allow for informed conclusions to be reached as to whether all relevant records have been considered for release. Having reviewed the many engagements between this Office and the HSE, I am of the view that the HSE did not do so in this case.

In the first instance, many of the HSE’s response to specific queries raised by this Office were quite limited, to the extent that further clarifications were deemed necessary on several occasions. Secondly, some of the responses given were contradictory, thus also resulting in the need to seek further clarifications. It seems to me that had the HSE provided the full and detailed explanations that were sought from the outset, the prolonged engagements would not have been necessary.

I should say that it appears to me that much of the difficulty may have arisen due to the narrow interpretation the HSE took of the nature of the records sought in the original request. While the applicant had clearly specified that she was seeking all information pertaining to the processing and analysis of her blood samples, it appears that the HSE interpreted the request as being for the results of the tests carried out by the Hospital only. It did not appear to give any consideration at the outset to the type and extent of relevant information that might be held on its electronic systems. Even then, it did not release the results of the two tests that had been carried out by St. James’s Hospital, until much later during the course of the review.

I note that during the review, the HSE stated that that under FOI, the Hospital only releases test results relating to samples that are processed at the Hospital. However, the fact remains that the Hospital also holds copies of the results of the tests carried out by St. James’s Hospital. As such, those records should have been considered for release. Had the HSE taken the view that the results had already been released to the applicant’s GP it was open to it to refuse access to such records on the ground that they were already available to the requester. It was not appropriate to simply ignore such records when processing the FOI request.

On the other hand, I would add that there is an onus on requesters to provide sufficient information to allow a public body to identify the records sought by the taking of reasonable steps. Requests for “all information pertaining to” a particular matter run the risk of being interpreted differently by the parties. Indeed, I note that during the course of the review, the applicant suggested that no records had been provided concerning payments sought by or made to St. James’s Hospital for carrying out two of the tests at issue. In my view, the HSE could not reasonably have been expected to take such an expansive interpretation of what was sought. Nevertheless, I am satisfied that it was not appropriate to assume that only the results of the tests that were carried out at the Hospital were sought.

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 this case, four separate tests were carried out of the applicant’s blood samples.  The Hospital carried out two of those tests while the remaining two tests were carried out by St. James’s Hospital.

In its submissions to this Office, the HSE provided details of the Hospital’s record management practices and the searches conducted to locate the records sought by the applicant. According to the HSE, GP requests to the Hospital are submitted on hardcopy specimen request forms which are then scanned for electronic storage using DART, a scanning system used by the Hospital. It stated that while the hardcopy forms are retained for four weeks and then shredded, the electronic record is kept indefinitely.

The HSE stated that patient information and type of request is recorded onto the Hospital’s LIS and the sample is then directed to the appropriate laboratory for analysis. It stated that two of the applicant’s samples were referred by the Hospital to St. James’s Hospital through a courier website and that the referral was recorded on the LIS.

The HSE also provided this Office with documentation further outlining the Hospital’s procedures for the referral of samples to St. James’s Hospital with respect to the tests carried out in this instance. In summary, the procedures outline that requests for those tests can only be made by members of the haematology team and, if they are requested by another team, the requesting doctor should be asked to discuss the request with a haematology consultant and obtain their signature on a request form.

The HSE explained that while requests would occasionally come through a GP, the GP would generally have haematologist approval for the request. In this case, however it stated that the tests may have been referred to St. James’s Hospital without authorisation.

In relation to test results, the HSE explained that the results of samples which are analysed internally at the Hospital are uploaded to Healthlink and can be accessed by a GP at their surgery. It explained that Healthlink is used to electronically transfer results from the LIS to GP’s for the Hospital. With regard to samples which are analysed externally, the HSE explained that Healthlink is not used to transmit those results. Instead, when results are returned to the Hospital a notification is posted on Healthlink to inform the GP that they can be expected by post and a record of this notification time is recorded on the LIS. It stated that the Hospital then posts a hardcopy of the results to the GP, retaining a copy of same, but not the accompanying cover letter / compliment slip.

On the matter of the searches carried out, the HSE stated that searches of the LIS and Healthlink were undertaken using the personal identifiers of the requester including name, date of birth, and numerator identifiers.

The records released by the HSE to date in response to the FOI request include;

• results of the two tests carried out at the Hospital,
• results of the two tests carried out by St. James’s Hospital
• screenshots of certain information held electronically on LIS relating to the two tests carried out by St. James’s Hospital

The applicant has argued that further relevant records other than those already released to her should exist. She argued, for example that records relating to the decision to have St. James’s Hospital carry out two of the tests and copies of records accompanying the test results should exist.

I should say at this stage that despite the various submissions made by the HSE during the course of the review, it remains unclear to me as to the precise nature and extent of the electronic records relating to the applicant that are held by the Hospital on the various electronic systems. It would appear, however, that the HSE has not released all relevant records to the applicant.

Indeed, at a late stage during the review, the HSE identified and provided this Office with copies of additional electronic records, some of which it described as having been scanned to DART. They appear to be copies of the requests submitted by the applicant’s GP for the relevant tests to be carried out and copies of records that accompanied the test results to the applicant’s GP. On foot of a query from this Office, he HSE stated that those records had not previously been released to the applicant.

This, of itself, provides a sufficient ground for me to find that the HSE has not considered all relevant records for release. In the circumstances, I am not 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 not justified in refusing access to additional records under section 15(1)(a).

I consider that the most appropriate course of action to take at this stage is to annul the decision of the HSE in its entirety, the effect of which is that the HSE must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the HSE’s decision.

For the benefit of both parties, I would draw attention to section 12(1) of the FOI Act which requires that a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, and to the corresponding obligation on the HSE, under section 11(2), to give reasonable assistance to persons making requests for records. It seems to me, that as a first step in processing the request afresh, it would be beneficial for both parties to agree, in the first instance, on the precise nature of the records sought, apart from those already released. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case. I direct the HSE to conduct a new decision-making process on the applicant’s request.

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 Investigatory