Whether the HSE was justified in refusing access to the birth records of the applicant under section 15 (1)(a) of the FOI Act on the grounds that the records sought do not exist or cannot be found

9 August 2019

Background

On 27 August 2018 the applicant made a request to St Columcille's Hospital for access to his birth records from late 1959. On 31 August 2018 the HSE issued a decision in which it stated it has no medical or maternity files for the 1950s as its records commence from the 1970s only.

The applicant sought an internal review of that decision on 12 March 2019, following which the HSE issued its internal review decision in which it affirmed the decision to refuse the request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. The applicant sought a review by this Office of that decision on 10 April 2019

During the course of the review, the HSE provided this Office with details of its record management practices and details of the searches it had undertaken to locate relevant records. Ms Hannon of this Office provided the applicant with those details and informed him of her view that the HSE was justified in refusing access to the records sought under section 15(1)(a). She invited him to make a further submission on the matter.

As submissions have now been received, I have decided to bring this case to a close by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.

Scope of the Review

During the course of the review the HSE located and provided the applicant with a copy of an entry in the Register of Admission relating to the applicant’s birth. It stated this was the sole record it could locate in relation to the applicant’s request.

Therefore, this review is concerned solely with whether the HSE was justified in its decision to refuse the applicant access to further relevant records relating to his birth under section 15(1)(a) of the FOI Act on the grounds that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

As outlined above, Ms Hannon provided the applicant with details of the searches undertaken by the HSE and its explanation as to why it could not locate further relevant records. Therefore, while I do not propose to repeat these details in full, I can confirm I have had regard to them for the purposes of this review.

In summary, the HSE stated that maternity records are available from the 1970’s up until the unit closed in 1988. It confirmed that it does not physically hold any maternity files for 1959. It said a database was set up in the Hospital in the early 1990’s which held the list of all maternity healthcare records available at that time. It said these are the physical charts that would have been created when the mother was admitted to the hospital. It said it searched this database but no file was located in relation to the applicant. It said all healthcare storage areas in the Hospital and archived companies were also searched.

The HSE explained that births were recorded in the main Hospital Register along with when the mother was admitted and discharged. It said it checked the Hospital Register and located the entry relevant to the applicant. As outlined above, this record was released to the applicant during the course of the review. The HSE stated that it cannot explain why no other records exist prior to 1970 as all staff who might be in a position to provide an explanation for same have since retired.

In submissions to this Office, the applicant provided a copy of his birth certificate stating that it contradicts the information on the record of the Hospital Register entry supplied to the applicant by the HSE. From my examination, this is not the case. The applicant’s date of birth matches the date of birth recorded in the Hospital Register entry.

The role of this Office is confined to determining whether the HSE has conducted all reasonable searches. 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 simply lost or cannot be found. Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.

It is unfortunate that the HSE cannot give an explanation as to why no maternity records exist prior to 1970. However, this does not preclude me from finding that the HSE was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act.

Having considered the details of the searches undertaken, I am satisfied that the IEHG has carried out all reasonable steps in an effort to ascertain the whereabouts of relevant records. I find therefore, that the HSE was justified in refusing the applicant access to further records related to his birth on the ground that they cannot 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 access to further records relating to the applicant’s birth under section 15(1)(a) of the FOI Act on the grounds that no further relevant records can be found.

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