Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records of communications between Mater Misericordiae University Hospital and a named doctor about the applicant, apart from those already released, on the ground that no further relevant records exist or can be found
25 February 2022
Background
While the applicant and the HSE exchanged quite an amount of correspondence during the processing of the request that is the subject of this review, I have referenced below only the key exchanges between the parties in relation to the request.
On 11 May 2020, the applicant sought access to copies of all records relating to all communications between Mater Misericordiae University Hospital (the Hospital) and his GP relating to him. He also sought, under section 10 of the Act, a "statement setting out the reasons for any acts (in relation to the Mater) affecting me, and any findings on any material issues made for the purposes of such acts". The original letter was directed to Mr. Paul Reid, CEO HSE.
On 21 July 2020, the HSE issued a decision on the request wherein it said it had decided to grant the request and it released a number of records (76 pages in total) held by the relevant GP. The applicant sought an internal review of the HSE's decision, essentially on the ground that he may not have received all relevant records, following which the HSE affirmed its original decision. On 9 April 2021, the applicant sought a review by this Office of the HSE's decision. In his application for review, he indicated that the only issue arising was that he asked for copies of all records and that he had not received them.
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 submissions made by the HSE and the applicant's comments in his application for review and in further communications with this Office. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
During the course of the review, the HSE located and released one additional relevant record that I will discuss in more detail later in this decision. Its position is that all relevant records have, at this stage, been released to the applicant. Section 15(1)(a) of the FOI Act provides for the refusal of a request for records where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the Act, in refusing access to any further relevant records coming within the scope of the applicant's request apart from those already released on the ground that no further records exist or can be found.
Preliminary Matters
Before I address the substantive issue arising, I would like to make a number of preliminary comments.
First, the applicant's request for records was directed to the HSE. Records held by GPs relating to medical card holders are subject to the FOI Act and are deemed to be held by, or under the control of, the HSE for the purposes of the Act. Mater Misericordiae University Hospital is an FOI body in its own right. As such, this review is concerned only with those records that are held by the HSE. it is open to the applicant to submit a request to the Hospital for relevant records of its communications with his GP, if he has not already done so.
Secondly, during the course of the review, the applicant suggested that the Information Commissioner should initiate an investigation into how FOI requests are processed by the HSE. It is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how previous FOI requests were handled by the HSE. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the FOI Act. Section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act.
A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. I am satisfied that an investigation under section 44 is not appropriate in this case.
Analysis and Findings
Section 15(1)(a) of the Act 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 role of this Office 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 we 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 must also 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. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case ofMatthew Ryan and Kathleen Ryan and the Information Commissioner(2002 No. 18 M.C.A.), available on the website of this Office at www.oic.ie).
In this case, the Investigating Office sought a submission from the HSE, wherein she asked it, among other things, to provide details of the searches undertaken on foot of the request and details of its records management practices in so far as records of the type sought are concerned. In its replying submissions, the HSE provided details of the response prepared by the applicant's GP. The GP explained that all records such as those requested are stored electronically the patient's file. He said that any letters, documents, test results, messages and reports are stored in the patient's file and the hardcopy is shredded after it has been reviewed and scanned to the patient's file. The applicant's GP uses a software called Helix Practice Manager to manage patient files and Healthlink which is an electronic messaging service used by the GP and the Hospital to exchange messages and lab reports. The GP said no electronic patient records are ever destroyed or deleted and that no records relating to the applicant were destroyed. He explained that where a patient no longer attends the GP, the patent's file is archived but remains available if required.
The GP further stated that searches were undertaken on the applicant's patient file as they would not be held in any other location. On foot of specific queries by the Investigating Officer in her request for submissions, the GP explained that the log at pages 1-11 of the records released are a log of all activity/entries on the applicant's file. He said the log is generated in Helix Practice Manager and was generated by clicking "view patient history" from the dropdown menu before being printed. He explained that the log generates a note every time a letter or message is downloaded into the file. He said the type of information includes long term medications, consultations, exams, immunisations, HL7 messages, E referrals and protocols. If a document is scanned onto the file it is also documented in the log.
As part of the records released, there were a number of -˜HL7 messages'. The GP explained that HL7 messages are electronic communications used by the Healthlink messaging service to send secure messages to and from hospitals and doctors. A registered Healthlink account is required to send or receive messages. The messages are downloaded directly into the patients file and they consist of notices of upcoming hospital appointments, hospital discharge summaries and D Doc reports (out of hours GP service).
In his application for review, the applicant had indicated that he had not received HL7 Message dated 2 May 2019. In response, the GP clarified that the HL7 message was not included as it appears not to have been read as it was notice of an upcoming appointment. The HSE released the message to the applicant during the course of the review.
Following receipt of the HSE's submissions, the Investigating Officer forwarded details of same to the applicant. Among other things, she invited him to submit details of any other records he believed should be held by the GP.
In response, the applicant raised concerns about the manner in which his request had been processed and said he was aware that other records had not been released to him. However, he provided no specific information in support of that claim that would prompt this Office to make further specific enquiries of the HSE. Nevertheless, I note that in his application for review, the applicant argued that the NTPF Waiting List Management Protocol lists some mandatory records and he argued that his GP should have noticed and queried the absence of such records.
On this latter point, it is important to note that the FOI Act is concerned with access to records actually held by public bodies. If the records sought are not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the records ought to exist. Moreover, the FOI Act does not require absolute certainty as to the existence or location of records. The role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records sought.
In this case, 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 taken all reasonable steps to locate all relevant records in this case. Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records apart from those records already located and released, on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse access, under section 15(1)(a) of the Act, to any further relevant records other than those 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
