Whether the MMUH was justified, under section 15(1)(a) of the Act, in refusing access to additional records relating to an appointment the applicant attended at the MMUH

19 December 2022

Background

This review has its background in a previous review conducted by this Office (case number OIC-94370-J5K3K7 refers) in connection with a request the applicant made for access to various records relating to a specific medical appointment. He had attended the MMUH on 5 October 2016 for a pre-arranged medical appointment and despite attending, the appointment was erroneously recorded by the MMUH as -�Did Not Attend-� (DNA). Subsequently upon learning of this, the applicant made a complaint to the hospital, following which the MMUH amended its system to correct the error.

In a request dated 26 March 2020, the applicant sought access to all records relating to the appointment of 5 October 2016 -�from the date it was devised to the present, including of those relating to their falsification and subsequent correction, and of those relating to any ensuing enquiries-�.

The MMUH released 18 records on foot of the request following which the applicant sought a review by this Office of the MMUH-�s decision on the ground that he had not received all relevant records. In the Senior Investigator-�s decision following the review in case OIC-94370-J5K3K7, dated 17 September 2020, he noted that the MMUH agreed during the review that further relevant records may exist. Accordingly, he annulled the decision of the MMUH and directed it to consider the request afresh.

On 13 November 2020, the MMUH issued a decision wherein it said it had decided to grant the request and it released 16 records which had not previously been identified as relevant to his request and an accompanying schedule. On 3 December 2020, the applicant sought an internal review of that decision on the ground that he had not received all relevant records. On 21 December 2020, the MMUH issued its internal review decision wherein it refused access to any further records under section 15(1)(a) of the FOI Act on the basis that all relevant records had been released. On 15 June 2021, the applicant sought a review by this Office of the MMUH-�s decision.

During the course of the review, the MMUH provided submissions wherein it outlined the searches undertaken in an effort to locate the records sought. Details of those searches were provided to the applicant and he was invited to make submissions on the matter. The applicant wrote to this Office a number of times during the course of the review and also responded to the invitation to make submissions. I confirm I have had regard to all correspondence provided by the applicant.

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 the MMUH as outlined above and to the communications between this Office and both parties on the matter. I have also had regard to the content of the records located by the MMUH. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The MMUH-�s position is that it has, at this point, released all relevant records it holds relating to the applicant-�s request of 26 March 2020 for all records relating to his medical appointment of 5 October 2016.

Accordingly, this review is concerned solely with whether the MMUH was justified in refusing access, under section 15(1)(a) of the Act, to additional records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

It is important to note from the outset that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.                                                                                                         

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 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 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

Searches

In this case, the Investigating Officer sought a submission from the MMUH, wherein she asked it, among other things, to provide details of the searches undertaken on the foot of the request. In its response, the MMUH stated that it maintains an electronic appointment management system called PatientCentre, which is the primary location for records relating to a patient-�s attendance at the MMUH. It said that records 1-5 in schedule 1 released at original decision stage were the -�core records-� relating to the applicant-�s attendance at the out-patient appointment on 5 October 2016. The MMUH stated that six staff members including the applicant-�s consultant and the Waiting List Coordinator carried out searches for relevant records. It said that staff in the Patient Services Department, Medical Records Department, CEO-�s Office/Company Secretaries Office, Waiting List Coordinator and the Waiting List Office also carried out searches. The MMUH stated that searches were carried out using the applicant-�s Medical Record Number (MRN) and name. It said that its Chairman and individual Board Directors were not contacted to carry out searches for records, as they had not corresponded with the applicant directly in relation to the appointment. The MMUH stated that any correspondence from the applicant to the Chairman or individual Directors was handled through the Office of the Company Secretary.

Specific Queries

In respect of particular records sought by the applicant, the MMUH said that it does not record telephone conversations, and that therefore, no records of relevant telephone calls existed.

In his application for review the applicant enclosed a copy of his GP-�s diary in which two HL7 messages from the MMUH are listed. He queried why the MMUH had not located these records and asked whether his computer records have been -�wiped or falsified-�. In response to queries on this matter, the MMUH stated that HL7 is a computer language that facilitates communication between systems. In this case, it stated that HL7 facilitated communication between the Mater Hospital System (PatientCentre) and the GP Practice System via Healthlink. I understand that Healthlink is a web-based messaging service which allows the secure transmission of clinical patient information between Hospitals, Health Care Agencies and GPs. The MMUH stated that certain activities on PatientCentre will trigger an automated HL7 message to be sent to a patient-�s GP, if that GP is Healthlink enabled. It stated that, for example, the record marked Episode Enquiry for Appointment on 5 October 2016 in the schedule of records provided, was an example of how a discharge of an inpatient will trigger a message to be sent to the GP via Healthlink in HL7. It said that how this information is displayed on the GP-�s Practice System will differ to how the information is displayed on PatientCentre and that it has -�no visibility or control over [this]-�.

The MMUH further stated that there are many other activities that will trigger a message to be sent to the GP, such as when a patient is admitted to the Emergency Department. Finally, it stated that PatientCentre overwrites a booked appointment with the actual attendance once the patient is registered.

In the circumstances, I am satisfied that the MMUH has adequately explained why no records relating to the HL7 messages or records of telephone conversations were located in response to the applicant-�s request.

Whether additional records exist

During this review, the Investigating Officer queried whether further internal records existed, in particular in relation to the amendment of the applicant-�s record concerning the DNA. In response, the MMUH provided this Office with an additional schedule of records (schedule 2) and a copy of 16 records. The MMUH released record 3, schedule 2 to the applicant during this review. It stated that the record had previously been omitted due to human error and apologised for any inconvenience this had caused.

I note that 8 of the newly located records were created by the MMUH during the processing of the applicant-�s FOI request and were therefore considered to be outside the scope of his request. It is, of course, open to the applicant to make a new FOI request for access to relevant records which were created after the date of his original request on 26 March 2020.

Records 1-8, schedule 2 are internal emails between staff members mainly discussing drafts of letters for approval. The MMUH-�s position is that as the internal emails did not mention the 5 October 2016appointment they were not within the scope of the applicant-�s request. Its view was that as the attached documents explicitly referenced the appointment, they were within scope and were released. Having carefully examined the emails concerned, I am not satisfied that they are outside the scope of the applicant-�s request. The records were clearly created while dealing with his complaint and ensuing enquiries regarding the appointment. Furthermore, of the 12 records released in Schedule 1, I note references to at least four letters which appear to be a continuum of correspondence between the applicant and different staff members of the MMUH, which are not listed on either records schedule provided to this Office during this review.

I note that the applicant has engaged in extensive correspondence with the MMUH and his -�ensuing enquiries-� about what he views as the falsification of medical records and I accept that this adds complexity to the identification of records given the number of individuals who have been contacted. However, considering the MMUH-�s approach to scope outlined above, i.e. that records which did not explicitly refer to the appointment of 5 October 2022, but enclosed records which did, were outside the scope of the applicant-�s request, it seems to me that further records may exist.

Having regard to the narrow approach to scope taken by the FOI body, the reference to additional records which have not been located contained in the records provided to this Office and to the MMUH-�s submissions, I am not satisfied that it has carried out all reasonable steps to identify relevant records in this case. Accordingly, I find that, on balance, the MMUH was not justified in refusing access to additional records under section 15(1)(a) on the ground that further records do not exist or cannot be found after all reasonable steps have been taken.

Furthermore, having regard to the content and context of the records concerned, I am satisfied that the emails contained in records 1- 8 in Schedule 2 are within the scope of the applicant-�s request. I find that the MMUH was not justified in refusing access to these records on the basis of section 15(1)(a). However, I do not consider it appropriate to simply direct the release of records 1-8, Schedule 2 before the MMUH has had an opportunity to consider their content under the provisions of the FOI Act.

In the circumstances, I consider that the most appropriate course of action to take is to annul the MMUH-�s decision, the effect of which is that the MMUH 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 he is not satisfied with the MMUH-�s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the MMUH-�s decision to refuse access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request. I direct the MMUH to conduct a fresh decision making process on the 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.

Sandra Murdiff
Investigator