Whether the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant's request for certain records relating to a specified medical procedure she underwent on the ground that the records sought do not exist

11 May 2022

Background

In a request dated 15 November 2021, the applicant sought access to video and CD records relating to a specified medical procedure she underwent on 19 March 2021 at the University Hospital Waterford.

In a decision dated 30 November 2021, the HSE refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist. The HSE said that according to the relevant consultant, records of the specific procedure are not retained. The applicant sought an internal review of that decision, following which the HSE affirmed its refusal of the request.

The applicant sought a review by this Office of that decision on 21 February 2022. In her application for review, she said that as she had follow up appointments, it was important that her previous tests were retained.

During the course of the review, the Investigating Officer sought submissions from the HSE on the searches undertaken to locate the sought records and a summary of those submissions were provided to the applicant. No further comments or submissions were received from the applicant in response.

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 HSE as outlined above, to the submissions made by the HSE to this Office, and to the applicant's comments in her application for review. 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 Act, in refusing access to certain records relating to the applicant's medical procedure on the grounds that the records sought do not 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 outlined above, the HSE provided this Office with details of the steps it took to search for the records sought and of its reasons for concluding that no relevant records exist. The relevant consultant indicated that the recording of the specified procedure is to show the consultants the findings as all patients are seen by a consultant in the relevant department. He said that if the findings are deemed to be normal or non-specific, the recording is deleted as there is a finite amount of storage space given to the relevant department by the IT department. He said that as the findings in the applicant's case were non-specific, the recording was not saved. He said the response to treatment would be a subjective response as opposed to an objective response and hence the recording was not stored to compare the response to treatment. The consultant said it was never his intention to review the video at a follow-up appointment.

The Hospital's ICT manager said the equipment used to record the procedure does not have a back-up solution. He said it stores a limited number of images and as new ones are added the oldest ones are removed to make room. He said ICT staff provided access to a small file share on a local pc for the relevant consultants on the understanding that they were looking to save certain cases for training purposes. He said the local pc is not backed up and has a very limited storage capacity. The HSE said the IT department checked the data awaiting deletion and confirmed that the records sought were not on file. He searched by patient number and name.

Having considered the details of the HSE's submissions, I am satisfied that it has carried out all reasonable steps in an effort to locate the records sought in this case and that it was justified in concluding that the records do not exist. I note that the applicant expressed concerns about the Hospital's failure to retain the records and suggested that the Hospital should have done so. The appropriateness, or otherwise, of the practices adopted by the Hospital in relation to procedures such as the one at issue in this case, is not a matter for examination by this Office. If the record sought does not exist, we have no further role in the matter

Accordingly, I find that the HSE was justified in refusing, under section 15(1)(a) of the Act, the applicant's request on the ground that the records sought do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse, under section 15(1)(a) of the Act, the applicant's request for certain records relating to a specified medical procedure she underwent on the ground that the records sought do not exist.

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