Whether the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to her deceased brother on the ground that no relevant records exist or can be found
OIC-106320-W7W6F5
Background
In a request dated 14 August 2020, the applicant submitted a request for access to her deceased brother’s full and complete hospital file from 1980-1990. In a decision dated 22 January 2021, the HSE refused the request under section 37 of the FOI Act. It referred to earlier correspondence and noted that neither her mother’s consent nor current contact details had been provided.
On 31 January 2021, the applicant sought an internal review of that decision. She said she was seeking a redacted file of her brother “in relation to the current Tuam Baby scandal”.
In a subsequent letter, she said she was seeking information regarding her brother only and that information relating to other parties contained in the file could be redacted.
In its internal review decision of 1 March 2021, the HSE said that the only information provided by the applicant to enable the identification of relevant records was her late brother’s name. It said that following relevant searches, no records could be found and it refused the request under section 15(1)(a) of the Act. It noted previous correspondence wherein the HSE had explained that relevant records regarding her brother’s birth may have been contained within the file relating to the applicant’s mother. It said that if it is to consider the records of the applicant’s mother, it would be necessary for the applicant to provide the consent of her mother to access her records for that purpose. It said the applicant had not provided her mother’s consent and that those records could not, therefore, be considered “in consideration of section 37(1) of the … Act”. It added that those records would be considered to refer to the applicant’s mother.
By letter dated 9 April 2021, the applicant sought a review by this Office of the HSE’s refusal of her request. 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 to the correspondence between the applicant and he HSE as outlined above and to the correspondence between this Office and both parties on the matter. 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, under section 15(1)(a) of the Act, the applicant’s request for records relating to her deceased brother, on ground that no relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the review, the Investigating Officer informed the applicant of the details provided by the HSE of the searches it undertook in an effort to locate relevant records and of its explanation as to why no records could be found. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.
In its submissions, the HSE also indicated that the file of the applicant’s mother may contain some relevant records but noted that the mother’s file does not normally contain records of children’s names because a file is developed for a child in his/her own name and the child will have its own record. However, it indicated that it did not examine the file in question to determine if relevant records are held on it. It argued that it would not be appropriate to assume that a record was contained in the mother’s file and again noted that the applicant had not provided the mother’s consent in order to access her records for that purpose.
As I have noted above, in its internal review decision, the HSE also referred to the possibility that relevant records may be held in the mother’s file. It argued, in that decision, that as the applicant had not provided her mother’s consent, those records could not, therefore, be considered, in consideration of section 37(1).
Section 37(1) provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to a third party. It does not, however, prevent the HSE from examining the file of a third party to determine if relevant records relating to another party may exist during the processing of an FOI request. I see no reason why the HSE considers that it would be required to seek the consent of the mother to simply examine the file with a view to determining if records relating to the applicant’s deceased brother might be held on that file. If I was to accept the HSE’s position, it seems to me that the HSE could never conduct searches of the files of third parties where, for example, concerns arose about possible misfiling of records, without first having contacted the parties whose files might need to be searched. I do not believe such a measure to be necessary.
The question I must consider in cases where a request has been refused under section 15(1)(a) is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. In this case, the HSE itself indicated that relevant records may be held on the file of the applicant’s mother but it did not examine that file. In my view, it was entirely reasonable to expect the HSE to examine a file that it considers might hold relevant records. In the circumstances, I simply cannot find that the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records in this case.
I find, therefore, that the HSE was not justified in refusing the request under section 15(1)(a). I consider 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. 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.
I would add that I have not considered whether any records held on the mother’s file, if they exist, might be exempt from release under section 37(1) of the Act. It seems to me that before the HSE can consider whether any relevant exemptions might apply, it must first establish whether relevant records exist.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the HSE to refuse the applicant’s request for records relating to her deceased brother. I direct the HSE to conduct a fresh decision-making process.
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