Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to records held by a Public Health Nursing department in a named Primary Care Centre on the ground that no further relevant records could be found

21 March 2022

Background

In a request dated 27 July 2021, the applicant sought access to any records that refer in any way to his GP's requests to the public health nurse (PHN) of a named HSE Primary Care Centre. On 28 July 2021, he clarified that he was also seeking physiotherapy records. In a decision dated 25 August 2021, the HSE decided to grant the request. It released 152 records held by the Physiotherapy Department and 6 records held by the PHN Department.

On 8 September 2021, the applicant sought an internal review of the HSE's decision in relation to the PHN records. He was not satisfied that all records had been identified and released.

On 12 October 2021, the applicant sought a review by this Office of the deemed refusal of his application for internal review as the HSE did not issue it internal review decision within the required time-frame. On 8 November 2021, the HSE affirmed its original decision in a late internal review decision. It said that following receipt of the request, the Assistant Director for Public Health Nursing (DPHN) advised that the applicant was not an active client on the PHN caseload. It said she contacted the Public Health Nurse in the relevant Primary Care Centre. It said the PHN did a full search of her Active and Discharge files and confirmed that no records relating to the applicant and/or documentation from his GP relating to him was found. It said the PHN subsequently advised that six records were located in Archives and that these were released in full. The applicant applied to this Office for a review of the HSE's decision on 12 November 2021.

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 parties as summarised above, and to submissions made by the applicant and by the HSE. 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, under section 15(1)(a) of the FOI Act, in refusing to release any further relevant records held by the PHN Department at the named Primary Care Centre on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

In his correspondence with this Office and with the HSE, the applicant highlighted serious ongoing health issues that he is experiencing and expressed concerns about the standard of care provided to him by the HSE. He also raised concerns about record-keeping. Firstly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review has been conducted under section 22(2) of the Act and its scope is confined to the matter identified above.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).

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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

In his correspondence with this Office, the applicant referred to specific records that he believed should be held by the particular PHN Department and should have been released to him, including a fax referral sent by his GP on 22 June 2020, an email sent by his GP to a named PHN on 11 October 2020, an email from the named PHN to his GP on 12 October 2020 requesting information relating to the applicant, and an email from his GP to the PHN on 9 November 2020 responding to that request. He also said he was seeking any waiting list or file records arising from the above correspondence.

In requesting focused submissions from the HSE on the nature and extent of the searches carried out, the Investigating Officer made particular reference to these specific records.

The HSE said that, in addition to the searches described in the internal review decision (as set out above), the DPHN carried out further searches in an attempt to identify if the records sought were held elsewhere in the office. It said that paper files were searched to no avail. It said that the named PHN in the requester's correspondence has been on leave since October 2020. The DPHN accessed the PHN's email account, but the only emails available were from June 2021. It said that following the cyber-attack on the HSE's systems in May 2021, staff computers in the Primary Care Centre were swapped out and upgraded. The HSE said that the DPHN requested ICT to try to retrieve emails dating back to June 2020 but this proved not to be possible. It concluded that the records sought cannot be located.

Details of the searches were provided to the applicant and he was given an opportunity to comment. He reiterated his dissatisfaction with the care provided to him by the HSE. He said that the cyber-attack didn't explain the [absence of] other documents that would have and should have been created in dealing with his GP referral and subsequent correspondence, and that the evidence showed that nothing was done regarding the GP referral in the long period before the cyber-attack. He said that the PHN records regarding him from 2013 and 2014 had been found.

The applicant added that he has spoken to his GP and that no one has contacted her to rectify matters, and that she passed on his concerns about record-keeping in 2020. He said that more records would exist if the HSE had dealt with his GP's referrals and this is evidence of a failure in the HSE's duty of care. He went on to say that there is no doubt the records exist because in 2021 the HSE obtained copies of the faxes, emails etc. from his GP.

The Investigating Officer made additional enquiries with the applicant and the HSE in relation to this final comment. It emerged that the applicant had made another FOI request, on 28 July 2021, for broadly the same records as those at issue in this review. However, in that instance he sought records held by his GP, rather than by the PHN/Primary Care Centre. The HSE explained that medical records of GMS patients are considered HSE records and that FOI requests on such records are processed by the HSE by contacting the GP and requesting the records. This second FOI request was granted in full on 12 August 2021. The HSE said that while it appears the applicant has copies of the communications between the GP and the PHN that are at issue, the applicant's concern is that copies of these records should be held by the PHN/Primary Care Centre. However, it said that regrettably and despite extensive searches, they simply cannot be found in the PHN department or in the Primary Care Centre. The HSE noted that the PC used by the PHN had been physically retrieved and searched but no records were found.

In relation to the hard copy records, the HSE explained that faxes received are placed on the relevant physical file in a locked filing cabinet. It said that due to the relevant PHN being on extended leave, it had been unable to ask her directly but that searches of the relevant filing cabinets had not turned up any records related to the applicant beyond the six already released to him which were transport requests requiring sign-off by the PHN. The applicant provided this Office with a copy of the email from the PHN to his GP dated 12 October 2020. In that email, the PHN stated that this was the first she was aware of the referral and that it appeared that they had not received the referral in June. It seems to me that this supports the HSE's contention that it cannot find the fax from June 2020 in the Primary Care Centre.

As previously stated, how FOI bodies perform their functions generally is outside the remit of this Office. While I acknowledge the ongoing dissatisfaction that the applicant has with the HSE and how his care has been managed, this is beyond the scope of this review which is concerned only with whether the HSE has taken all reasonable steps in an effort to ascertain the whereabouts of the records sought.

In the circumstances, and having considered the details of the searches undertaken by the HSE and its explanation as to why no relevant records could be found, I am satisfied that it 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, to release further records relevant to his request on the ground that no such records can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I find that it was justified, under section 15(1)(a), in refusing to release further records on the ground that no further records can be found after all reasonable steps to ascertain their whereabouts have been taken.

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