Whether the HSE was justified in withholding a personal mobile phone number of a staff member from the applicant’s medical records under section 37(1) and whether it was justified in deciding that no further relevant records, apart from those already released, exist or could be found

11 January 2021

Background

On 1 July 2020, the HSE received a request from the applicant for access to her files held by a named General Practitioner (GP), including all emails and any contacts between her GP and other groups or persons.  In a subsequent clarification, she said she wanted all records from 1 January 2012 onwards.

As the HSE failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request.  On 17 August 2020, the HSE decided to part-grant the request.  It granted access to one set of records in full and redacted certain information from three pages of a second set of records under section 37(1) on the ground that release of the information concerned would involve the disclosure of personal information relating to third parties from whom no consent to its disclosure had been received and/or under section 35(1)(a) on the ground that the information had been obtained in confidence.

On 22 August 2020, the applicant sought a review by this Office of the HSE’s decision.  She provided copies of written consent from her son and grandson to the release of their personal information to her.  She also outlined her view that there were additional records, including emails, not received.

During the course of the review, on the basis of the consent which was provided to this Office, the HSE released some of the previously redacted information and also identified and released an email to the applicant’s GP from a social worker.

I have now completed my review of the HSE’s decision. In conducting the review, I have had regard to the correspondence between this Office and both the HSE and the applicant on the matter.  I have also had regard to the contents of the records at issue.  In referring to the records at issue, I have adopted the page numbering system for the second set of records as used by the HSE when processing the request.

Scope of the Review

As outlined above, during the course of the review the HSE released some of the previously redacted information:

• Page 3 – All redacted information released, with the exception of the personal mobile telephone number of a member of staff under section 37(1), and
• Pages 4 and 5 – All redacted information released, with the exception of the details of an  entry dated 29 August 2019 that commences on the bottom of page 4 and continues on page 5,  on the basis that it falls outside the scope of the applicant’s request.

The three pages of records at issue comprise part of the applicant’s medical records.  They contain entries regarding her consultations with the GP.  It is the HSE’s position that all of the redacted information relating to the entry dated 29 August 2019 on pages 4 and 5 falls outside the scope of the applicant’s request. It explained that the entry contains detail of a consultation with the applicant’s son and it said the note of the consultation was filed on the applicant’s medical record in error.  It said the filing error would be rectified as a matter of priority.

Having examined the entry, I am satisfied that it contains details of the son’s consultation. I accept the HSE’s contention that the entry was included on the applicant’s file in error and that steps are being taken to rectify the error. As such, I accept that the redacted information does not form part of the applicant’s medical record and that it falls outside the scope of this review. Should the applicant or her son wish to obtain access to the redacted information, they may wish to make a fresh request to the HSE for that information.

Accordingly, the scope of this review is concerned solely with whether the HSE was in refusing access to the information contained on page 3 under section 37(1) and in refusing access to further relevant records relating to the applicant other than those already released to her.

Preliminary Matter 

In her submissions to this Office, the applicant raised various issues concerning the action of her GP and a named social worker. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.

Analysis and Findings

Record 3

As outlined above, the only remaining redaction to record 3 is a personal mobile telephone number of a HSE social worker. Section 37(1) provides for the mandatory refusal of a request where access to the records concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. I am satisfied that section 37(1) applies to this information and that none of the other provisions of section 37 serve to disapply that exemption. I find that the HSE was justified in refusing to release the phone number in question.

Do other records exist?

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 her submissions to this Office, the applicant argued that there was information missing from the records she had received, including emails and records of contact between her GP and other groups or persons, such as a named social worker.  In its submissions to this Office, the HSE explained that it had contacted the relevant social worker who confirmed that she had sent one email to the applicant’s GP.  It stated that the GP was then contacted and he retrieved that email, which was released to the applicant. However, the applicant argued that further relevant records ought to exist, including of communications between her GP and the mental health services.

The HSE explained that the GP had, at the time, been against carrying out searches due to the Covid 19 pandemic. It said that while he had retrieved the specific email from the social worker, he had not carried out a full search of his emails in respect of the applicant’s request. In the circumstances, I find that I have no alternative but to find that all reasonable steps were not taken to locate all relevant records. I consider that the most appropriate course of action to take at this stage is to annul the HSE’s refusal of further relevant records, the effect of which is that the HSE must consider the applicant’s request afresh and make a new, first instance in accordance with the provisions of the FOI Act. Before doing so, the HSE may find it useful to engage further with the applicant in the first instance to clarify the precise nature of the records she believes ought to exist sought apart from those already released.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. While I find that it was justified in refusing access to certain information on page 3 under section 37(1), I find it was not justified in refusing access to further relevant records on the ground that it has not conducted all reasonable searches in an effort to identify all relevant records.  I direct the HSE to conduct a fresh decision making process in respect of the 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