Whether the Hospital was justified in its decision to refuse the applicant’s request for access to certain additional medical records relating to her late mother from May and June 2017 other than those already released to her on the ground that no further relevant records exist or can be found
18 May 2020
Background
On 20 June 2019, the applicant submitted a request to the Hospital for certain information relating to the records of her late mother. Specifically, she sought access to
1. The audit trail for the electronic glucometer for May and June 2017, and
2. All diabetes nursing management screening tools, all nursing management diabetes care plans and all diabetes variance sheets for the May and June 2017 episodes of care.
On 25 June 2019, she submitted an amendment to her request. She also sought access to
3. All nursing handover sheets for her mother for May and June 2017
The Hospital’s FOI Coordinator sought to discuss the request with the applicant and the parties exchanged a number of emails on that matter.
On 9 July 2019, the applicant submitted a further amendment to her request. She said she was also seeking access to
4. The revision history for the electronic glucometer
On 11 July 2019, the FOI Coordinator emailed the applicant and said that all medical records relating to her late mother, including all nursing documentation, had been released to her on 18 December 2018. He also asked the applicant to clarify what she meant by “audit trail” and “revision history”, in order to identify the records sought.
In her response on the same date, the applicant said that the records previously released did not include the diabetic nursing screening tools/care plans and variance sheets for May and June 2017 or the nursing handover sheets that are completed at the beginning and end of each shift, for the period in question. She also explained that “electronic health record technology creates chronological logs and data versions for documents”.
On 2 August 2019, the applicant wrote to the Hospital requesting an internal review of the FOI Coordinator’s “decision not to grant access to the records requested”. She referred to the Coordinator’s email of 11 July 2019 and said the email did not set out whether the Hospital’s position was that it did not hold or could not find the records sought or that the request related to records already released.
She further explained that all electronic health records generate security relevant chronological log that authenticates the accuracy, completeness and reliability of the electronic glucometer health record that was released on 18 December 2018. She said the audit log provides documentary evidence of, among other events, who accessed the EMR; from which location and exactly what actions were taken (queries, print, copy, entry of new data, changes to existing data, deletions etc). She said the revision history is a chronological listing that saves the data versions that was changed.
On 6 August 2019, the Hospital issued a decision on the amended request. It provided a copy of a Quality Control Audit Trail for the glucometers used. While it refused access to diabetes nursing screening tools, care plans and variance sheets under section 15(1)(i) of the Act, which provides for the refusal of a request where the records sought was previously released, it also said that no such records exist apart from the records released. It also refused access to the nursing handover sheets under section 15(1)(i). It said the sheets are filed in the nursing notes section of the current healthcare record. Finally, it refused the revision history sought under section 15(1)(b) on the ground that the applicant had not provided sufficient details to enable the records sought to be identified by the taking of reasonable steps.
On 19 August 2019, the applicant sought an internal review of the Hospital’s decision of 6 August 2019. She argued that there were express references in the records previously released to the existence of diabetes nursing screening tools, care plans and variance sheets and that the nursing handover sheets were missing from the records previously released. She further argued that the audit record released was not the audit trail/log and revision history for the electronic glucometer that is uploaded onto the Hospital’s data management system.
On 9 September 2019, the Hospital issued its internal review decision, wherein it varied its original decision. In relation to part 1, it released a PDF document of an audit log/trail, which it described as containing the chronological log of blood glucose/ketones results with staff names and locations. It refused access to an audit log/trail containing any outstanding features as identified by the applicant under section 15(1)(a) on the ground that no such records exist.
In relation to parts 2 and 3, it explained that all nursing documentation is contained within the nursing notes section of the healthcare record and notwithstanding its view that such records had previously been released, it decided to re-release the scanned version of those records. It said it was satisfied with the adequacy of the searches carried out, but that it was willing to facilitate a meeting if the applicant wished to inspect the original healthcare chart.
On 2 December 2019, the applicant sought a review by this Office of the Hospital’s decision. She gave details relating to her interactions with the Hospital’s FOI process and further information relating to the additional records not received in response to her request.
During the course of this review, the Hospital provided this Office with details of its record management practices and of the searches it carried out to locate all relevant records. On 15 April 2020, Ms Swanwick of this Office provided the applicant with those details and informed her 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.
Although the applicant has submitted further procedural queries to this Office, she has not provided a further submission on the substantive issue of the searches undertaken to locate relevant records. At this stage, 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 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
This review is concerned solely with whether the Hospital was justified in refusing access to any additional records coming with the scope of the applicant’s four part request for certain records relating to her late mother on the ground that no further relevant records exist or can be found.
Preliminary Matters
Before I address the substantive issue I would like to make a number of comments in response to matters raised by the applicant in her application for review.
First, the applicant argued that the Hospital’s decision in this case was outside the statutory time-frame. I am satisfied that the Hospital appropriately treated the applicant’s emails of 25 June 2019 and 9 July 2019 as amendments of the original request. As such, I am satisfied that it properly regarded the request as having been received on 9 July 2019. Based on that date, the decision issued on 6 August 2019 was within the statutory time-frame.
Secondly, this review does not extend to examining the manner in which the Hospital dealt with her original request, including the manner in which it released records on foot of that request.
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 its submissions to this Office, the Hospital provided details of its relevant record management practices and of the searches it conducted to locate the records sought by the applicant. As Ms Swanwick of this Office has already provided the applicant with those details in her email of 15 April 2020, I do not propose to repeat them in full here. However, I have had regard to those details as set out in Ms Swanwick’s email for the purposes of this decision.
In summary, in relation to parts 1 and 4 of the applicant’s request as described in the background section above, the Hospital provided details of the audit arrangements and practices relating to the electronic glucometer. It also provided an explanation in relation to discrepancies the applicant identified between the two PDF documents she received relating to blood glucose/ketone readings and also between the electronically recorded readings and the manual readings. In essence, the discrepancy in the two PDFs arose as a result of the search criteria used. On the matter of the discrepancy with the manual chart, it said that that more entries may exist on the manual chart as a result of readings taken on the glucometer using a pseudo number. It noted that if a random number was used instead of a patient identifier, it is possible that results may have been lost in the database as they would not have been assigned to the patient’s medical record number.
In relation to parts 2 and 3 of the request, the Hospital explained that all nursing documentation is contained within the paper healthcare chart. It outlined that nursing handover takes place utilising the nursing admission assessment booklet, careful nursing reassessment booklet, and patient observation sheet and these records are held within the paper healthcare chart. It noted that while nurses may, at times, take notes of tasks to be performed, these notes are destroyed at the end of shift. It said a physical search was conducted of the paper chart and an electronic search was conducted on the system that holds a scanned copy of the chart. It also provided details of the individuals consulted.
The general thrust of the Hospital’s position is that no further relevant records exist apart from those already released. While the applicant may be unhappy with the Hospital’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.
As I have outlined above, the applicant made no substantive submission in relation to the details provided by the Hospital of the searches undertaken and of the reasons it gave for deciding that it holds no further relevant records. She did, however, ask if it might be possible for a case to be looked at again by this Office it is subsequently shown that information given by the FOI body was misleading and factually inaccurate.
The issue I must consider is whether, based on the evidence before me, the Hospital has satisfactorily shown that it has carried out all reasonable searches to locate the records sought. As such, a finding that it has is not a definitive finding that no such records exist. Clearly, a situation could arise where records that could not be found at a particular point in time are subsequently located, whether by chance or because of additional relevant information having been made available to the body to allow for more detailed searches to be undertaken.
Furthermore, if a requester subsequently became aware of information which would suggest that records a body claimed not to exist on foot of a previous request did, in fact, exist, it would be open to that requester to submit a fresh request to the body for those same records, even where a binding decision had been issued by this Office on the earlier request.
In this case, however, the applicant has presented no evidence to suggest that the searches undertaken by the Hospital were in some way inadequate or that it had provided misleading or factually inaccurate information. Having considered the details of the searches undertaken by the Hospital, its record management practices, and its procedures regarding the glucometer, I am satisfied that the Hospital has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request.
I find, therefore, that the Hospital was justified in refusing access to any additional relevant 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 Hospital to refuse access to further records coming within the scope of the applicant’s request 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