Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant held by its Mental Health Services on the ground that no relevant records exist or can be found

3 August 2021

Background

On 27 July 2020, the applicant submitted a request to the HSE for access to files held by its Mental Health Services relating to her. She said while she had not been involved with the mental health team, a social work file she had received on foot of an earlier request indicated that three named staff members of the team had been contacted by email about her. 

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 11 December 2020, the HSE issued its internal review decision in which it refused the applicant’s request under section 15(1)(a) on the ground that no relevant records could be located. It also said that an identified Mental Health Service did not have or hold a medical file belonging to the applicant.

In an application this Office received on 5 January 2021, the applicant sought a review of the HSE’s decision. In subsequent correspondence, she outlined that a named social worker had contacted her son’s mental health team. She provided a copy of a note from her social work file, signed by the social worker and another member of the safeguarding team, which indicated that the named staff members of the mental health team had been contacted by email in relation to her.

I have decided to bring this case to a close by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for access to records relating to her held by its Mental Health Services on the ground that no 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 HSE provided details of the searches conducted to locate the records sought by the applicant.  The HSE outlined that all relevant mental health service staff members were consulted and they confirmed that they held no files or records relating to the applicant. 

The HSE, in its internal review decision, had stated that a search was carried out of all storage areas, including the personal electronic records and the medical records of the relevant mental health service staff members. In providing further details to this Office, the HSE explained that the search undertaken would have included emails and that the staff members had been provided with the applicant’s name, address, and date of birth to use as search terms. It also outlined that while it was of the view that the three named staff members had received the email from the social worker referred to in the note provided by the applicant to this Office, they had not located the email following the searches carried out, as none of the criteria relevant to the search terms used were contained in the subject line.

The HSE further noted that while mental health service staff members were invited to, and did, attend a safeguarding meeting concerning the applicant, they did not take any notes. It said that the records of that meeting would be held by the safeguarding team. It also said that the email referred to by the applicant would be held with her safeguarding records. The HSE outlined that the applicant had made a separate FOI request for her safeguarding records and I note that the HSE’s decision on those records was the subject of a separate application for review by this Office, which was subsequently withdrawn by the applicant.

The general thrust of the HSE’s position is that its Mental Health Services hold no relevant records relating to the applicant on the basis that she was not, nor has ever been, a patient/service user of the Mental Health Services and, therefore, no file in her name exists. However, in light of the applicant’s indication to this Office that her son was a patient/service user and that her social worker had contacted his mental health team, as well as details provided by the HSE, my Investigating Officer sought clarification from the HSE as to whether it had searched her son’s mental health file for any relevant records relating to the applicant.

In its response the HSE outlined that while it holds a number of mental health files relating to the applicant’s son, which contain personal information relating to her, it did not search those files for relevant records when processing the request. It argued, in essence, that if such a search was required, it would consider this to be a new request, as the request at issue referred to records held in the applicant’s name rather than in her son’s.

I simply cannot agree with the HSE’s view. Having regard to the wording of the applicant’s request, it is my view that any records held by the Mental Health Services relating to her fall within the scope of the request, notwithstanding that they may not be held on a specific file relating to her / in her name.  Accordingly, it appears to me that the HSE took an unduly narrow interpretation of the applicant’s request and it ought to have also considered any relevant records that may be held within her son’s mental health files.

In the circumstances, I am not in a position to find that the HSE carried out all reasonable searches in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.  As such, I simply cannot find that section 15(1)(a) applies in this case.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the HSE in its entirety, 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. 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.  The HSE should also bear in mind that it is responsible for ensuring that any subsequent searches for relevant records extend to all parts of its Mental Health Services that might hold relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision to refuse the applicant’s request for records relating to her under section 15(1)(a) of the FOI Act.  I direct the HSE to conduct a new decision-making process on 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