Whether the HSE was justified in refusing the applicant’s request for records relating to three deceased siblings from the years 1966, 1974 and 1975 from two named facilities on the ground that no further records exist or can be found

21 December 2021

Background

On 12 September 2020, the applicant submitted a request for records relating to three deceased siblings from the years 1966, 1974 and 1975, noting two facilities (Mount Alvernia and Erinville Hospital) that may hold relevant records. She indicated that she was born in Erinville Hospital and that the earlier births of her siblings may have been in either of the two facilities named. The HSE sought further information and certain records in order to validate the request on 14 September 2020, which the applicant subsequently provided.

The HSE issued two decisions, one in respect of each facility. In its decision for Erinville Hospital which was issued on 20 October 2020 by Cork University Hospital as the body that holds records relating to Erinville, access was granted to a copy of the maternity chart for the applicant’s mother which was in respect of the applicant’s birth. In its decision for Mount Alvernia which issued on 9 November 2020, the HSE refused the request under section 15(1)(a) of the FOI Act, on the ground that no relevant records could be found.

The applicant sought an internal review of the HSE’s decision, following which the HSE issued separate internal review decisions. In its internal review decision for Erinville Hospital which issued on 23 February 2021, the HSE refused access to any further records on the ground that no further relevant records could be located. In its internal review decision for Mount Alvernia, which issued on 31 January 2021, the HSE released one record from an admissions book and affirmed its refusal under section 15(1)(a) of the FOI Act for any other relevant records. On 23 September 2021, the applicant sought a review by this Office of the HSE’s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the HSE’s submission, wherein it described the searches undertaken to locate relevant records and why certain records did not exist, and invited her to make submissions in response to those search details. The applicant has not provided a response to date.

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 HSE 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 HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to three deceased siblings from the years 1966, 1974 and 1975 from two named facilities, apart from the records already released, on the ground that no further relevant records exist or can be found.

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

In short, the HSE stated that records dating prior to 1969 were accidentally incinerated in Mount Alvernia, and extensive searches were conducted for records in both facilities but no further records could be located apart from the maternity chart for the applicant’s birth and the logbook entries provided to her prior to her appeal to this Office.

The HSE provided this Office with a copy of a note dated 1969 that was attached to the front of a log book containing entries for January 1969 to 1992, and a transcription of its contents, as part of its submissions. The note states that admission books and cash books were accidentally incinerated on 2 January 1969. The HSE stated that it therefore could not locate records from 1966 as these no longer existed. It also mentioned the possibility that records were never transferred to the Mount Alvernia facility in the first instance. It stated that the only maternity records from Mount Alvernia still held by the HSE are three log books, and it had provided all entries relevant to the applicant’s request to her at this stage.

In its internal review decision for Erinville Hospital, the HSE stated that it was unlikely that the applicant’s mother had attended Erinville Hospital for any earlier pregnancies, as no further records were contained in the maternity chart and no obstetric history documented. The HSE also stated that a search was conducted of the Erinville Labour Ward books for 1974 and 1975 but no relevant entries were found to match the name, date of birth, and address at the time of the applicant’s mother. The applicant has not at any stage provided evidence or any arguments that Erinville Hospital should have held further records, and therefore I can find no reason to dispute the HSE’s position in this regard.

As part of its submissions, the HSE also provided details of extensive searches conducted across several areas and details of consultations with various members of staff in order to locate relevant records. It stated that relevant records were only located in the Director of Nursing office in Mount Alvernia. The HSE also noted that, according to its record retention policies, the relevant records would not have been retained more than 10 years in the case of birth and death registers, and 25 years after the birth of the last child in the case of Maternity and Midwifery records.

Having considered the details of the searches undertaken by the HSE and of its explanation as to why no further relevant records could be found, I am satisfied that the HSE has carried out all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the HSE 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 or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 15(1)(a) of the Act, to any further records relating to the applicant’s three deceased siblings from the years 1966, 1974 and 1975 from two named facilities on the ground that no further records exist or can be found.

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