Whether the IPS was justified in its decision to refuse the applicant’s request for access to additional medical records relating to him other than those already released on the ground that no further relevant records exist or can be found

9 September 2020

Background

On 21 May 2019, the applicant submitted a request to the IPS for access to records from when he was a prisoner at an identified prison in 1993, namely; all medical certificates and reports signed by the doctors at the prison and medical certificates signed by the Governor and the Assistant Governors. He also sought the names of the relevant doctors. 

As the IPS failed to issue a decision on the request within the statutory timeframe the applicant sought an internal review of the deemed refusal of his request on 24 June 2019.  On the same day, he submitted a second, almost identical request, wherein he also sought access to medical files. As the IPS also failed to issue an internal review decision within the required timeframe, the applicant wrote to the IPS again on 28 August 2019 seeking “ a review of the matter”.

On 14 October 2019, the IPS informed the applicant that it was refusing the applicant’s request for a copy of his medical records under section 15(1)(a) on the ground that no such records could be found despite extensive searches. On 11 November 2019, the applicant sought an internal review of that decision.  The IPS issued an internal review decision on 22 November 2019, wherein it affirmed its original decision to refuse the request.  On 27 November 2019, the applicant sought a review by this Office of the refusal of his request.

During the course of the review, the IPS identified certain relevant records and released them to the applicant, subject to the redaction of information relating to third parties.  The IPS also provided this Office with details of the searches carried out to locate all relevant records.  Ms Swanwick of this Office provided the applicant with the details of those searches and informed him of her view that the IPS was justified in refusing access to any additional records under section 15(1)(a). In response, the applicant indicated that he wished the review to proceed.  Accordingly, 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 IPS and the applicant as outlined above and to correspondence between this Office and both the IPS and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the IPS was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to additional medical records other than those already released to him on the ground that no further relevant records exist or can be found.

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 IPS provided details of the record storage practices for the relevant prison and the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, it outlined that hardcopy records were held prior to the year 2000 and no records are known to have been destroyed.  The IPS noted that although records pertaining to the year 1993 were created before electronic record keeping on the electronic Prisoner Healthcare Management System, the system was searched using the applicant’s names and date of birth as search terms. 

In relation to hardcopy records, the IPS stated that no hardcopy medical records are filed or retained onsite at the relevant prison.  It explained that all archived hardcopy records from the prison and a former institution, which is now part of the prison campus, are held offsite by a records management company.  It stated that the records management company has two corresponding databases that list all records held in its file storage area and that these were searched using the applicant’s first name (including variations), surname, and date of birth as search terms.  Furthermore, it noted that when the hardcopy records were transferred offsite the records management company catalogued them and a copy of the list was sent to the Chief Nurse Officers responsible for managing healthcare at the prison.  The IPS stated that this list was also checked by the relevant prison.

The IPS explained that in 1993, medical details were not recorded on an individual basis and that large journals/ledgers were instead used to record consultations between prisoners and prison doctors.  It noted that the use of individual medical files began in the 1990s, however it was unable to recall the exact year.  The IPS outlined that the records management company forwarded the records from the journals/ledgers relating to the dates specified by the applicant in his request and those were the records which issued to him, with redactions, during the course of this review.

The general thrust of the IPS’s position is that no further relevant records exist apart from those already released.  While the applicant may be unhappy with the IPS’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.

Having considered the details of the searches undertaken and the record storage practices described, I am satisfied that the IPS 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 IPS was justified in refusing access to any additional 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 IPS’s decision to refuse the applicant’s request for further medical records 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