Whether the HSE was justified in refusing access to the applicant’s mental health records under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found

30 November 2020

Background

In a request dated 13 January 2020, the applicant sought access to her mental health records held by a named hospital. She provided some details of the period of her attendance. On 16 March 2020, the HSE refused the request under section 15(1)(a) on the basis that the records sought could not be located. The applicant sought an internal review of that decision, following which the HSE affirmed its original decision. On 23 September 2020, the applicant sought a review by this Office of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard the applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access to the applicant’s medical records under section 15(1)(a) on the ground that no records existed or could 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.

During the course of the review, the HSE informed this Office that records had been located following a search of microfilm records held by it and these were released to the applicant on 6 November 2020 with redactions. This very fact alone means that I cannot conclude that the HSE took all reasonable steps to ascertain the whereabouts of relevant records when processing the applicant’s request.

Furthermore, I note that certain information was redacted from the records released. The applicant was not afforded an opportunity to have the decision to redact certain information reviewed by the HSE. In the circumstances, I consider that the appropriate course of action to take is to annul the HSE’s decision, 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse access to the applicant’s mental health records under section 15(1)(a) of the FOI Act. I direct the HSE to conduct a fresh decision-making process in respect of 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 Investigator