Whether the Hospital was justified in its decision to refuse the applicant’s request for access to reports made by two identified individuals in relation to an incident under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist

13 September 2019

Background

On 3 December 2018, the applicant submitted a request to the Hospital seeking access to CCTV footage from a specified date in 2018 at a particular location within the Hospital and, as clarified by him on 21 December 2019, reports made by two identified individuals relating to an incident that had occurred. On 8 February 2019, the Hospital released the CCTV footage to the applicant, redacting the images of third parties. It also refused access to related reports on the ground that no such records had been created.

On 7 March 2019, the applicant sought an internal review of that decision. As the Hospital failed to issue an internal review decision, the applicant sought a review of the matter by this Office. The Hospital subsequently issued its internal review decision, wherein it affirmed its original decision to refuse access to the reports sought under section 15(1)(a) of the FOI Act and it stated that the CCTV footage provided was the best quality available.  On 13 May 2019, the applicant informed this Office that he wished the review to proceed.

During the course of the review, the Hospital provided this Office with the details of its record management practices and of the searches it carried out in an effort to locate the relevant reports.  Ms Swanwick of this Office provided the applicant with those details and informed him of her view that the Hospital was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act.  She also invited the applicant to make a further submission on the matter.  The applicant subsequently provided a further submission to this Office and also confirmed that the scope of this review could be confined to his request for the reports. Having regard to that submission, I consider it appropriate to conclude this review by way of a formal, binding 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 Hospital and the applicant as outlined above and to correspondence between this Office and both the Hospital and the applicant on the matter.

Scope of Review

The scope of this review is concerned solely with whether the Hospital was justified in refusing the applicant’s request for access to reports made by two identified individuals in relation to an incident under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.

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 submissions to this Office, the Hospital provided details of the searches conducted to locate the reports sought by the applicant and of its record management practices. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, the Hospital explained that security reports and adverse incident reports are stored on two different databases.  It outlined that both of these databases were searched by name, date of incident, date of birth, staff members’ names, and location. It also stated that the searches were broadened to capture any incorrect dates. In particular, the Hospital stated that it consulted with the two individuals identified by the applicant, that neither individual recalled the incident and that both confirmed that they did not submit a report. 

The general thrust of the applicant’s arguments is that, having regard to the nature of his engagements with the individuals identified by him, in particular the security officer, the reports sought by him should exist. The Hospital’s position is that no such records exist.  It is important to note that 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.  I should also explain that this Office has no role in examining the administrative actions of public bodies. 

In light of the explanations given by the Hospital, I am satisfied that that it was justified in refusing access to the reports sought by the applicant on the ground that no such records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse access the applicant’s request for access to reports made by two identified individuals in relation to an incident under section 15(1)(a) of the FOI Act on the ground that no such records exist.

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