Whether the Hospital was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to her attendance at the Hospital in 1963 on the ground that no further records exist or can be found apart from one record released during the review

17 December 2021

Background

On 12 July 2021, the applicant submitted, through her legal representatives, a request to the Hospital for all notes, memos and any records that may exist in relation to her time spent in the Hospital in the summer of 1963. Any references to correspondence with the applicant in this decision includes correspondence with her representatives. The Hospital sought further details in order to initiate a search for relevant records, which the applicant subsequently provided.

In a decision dated 26 July 2021, the Hospital issued its decision, in which it refused the applicant’s request under section 15(1)(a) of the FOI Act, on the ground that the Hospital only holds records for former patients with a date of birth after 1962, and as the applicant was born prior to this date, her healthcare records no longer existed. The applicant sought an internal review of that decision, following which the Hospital affirmed its decision. On 16 August 2021, the applicant sought a review by this Office of the Hospital’s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Hospital’s submission, wherein it described the searches undertaken to locate relevant records and why no records existed, and invited her to make submissions in response to those search details. The applicant has not provided a response to date. An index card was located on foot of queries made by the Investigating Officer in this review, and it is my understanding that this was released to the applicant in the course of the review.

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 applicant and the Hospital as set out 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 Review

This review is concerned solely with whether the Hospital was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to her attendance at the Hospital in 1963, apart from the index card that was located and released during the course of the review, on the ground that the records sought no longer exist.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in a case such as this 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Hospital provided this Office with details of searches it undertook in an effort to locate any further records and its reasons for concluding that no additional relevant records exist. As this Office has already provided the applicant with those details, I do not propose to repeat those details in full here. However, I confirm that I have had regard to them for the purpose of this review.

In short, the Hospital stated that its policy is only to perpetually retain healthcare records of patients whose date of birth is from 1963 and that any records relating to former patients whose date of birth is from before 1963 were destroyed in accordance with the Hospital’s records management policy.

The Hospital stated that its Healthcare Records Team initially searched on the patient administration system IPIMS, and when no record could be located, they checked the index cards filed in cabinets held in the Healthcare Records Department. It said that an index card was located for the applicant with two Hospital Numbers. The Hospital said that microfilm rolls containing healthcare records with Hospital Number ranges that enclosed the first Hospital Number were reviewed, but no records for the applicant were contained on these microfilm rolls. It said that it could not locate any microfilm rolls containing the second Hospital Number.

As part of its submissions, the Hospital enclosed copies of its Healthcare Records Retention Policy. In the Appendix to this Policy (Appendix A), the Hospital states that charts for children whose date of birth fell before 1963 were destroyed and not microfilmed, with the exception of metabolic or other patients whose condition meant they would continue to attend for treatment into adulthood. The applicant has not indicated that she attended the Hospital for any such conditions.

Having considered the details of the searches undertaken by the Hospital and of its explanation as to why no further relevant records could be found, I am satisfied that the Hospital has carried out all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Hospital was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further relevant records on the ground that no such further records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse access, under section 15(1)(a) of the Act, to any further records relating to the applicant’s attendance at the Hospital in 1963, other than the record already released.

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