Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further medical records sought by the applicant on the basis that no further records exist or can be found

4 November 2022

Background

In a request dated 26 August 2020, the applicant sought access to his entire medical file held by his former General Practitioner (GP) for the period from January 2000 until April 2016.

In a decision dated 23 September 2020, the HSE granted the request. On 9 October 2020, the applicant sought an internal review of the HSE-�s decision on the ground that referral letters issued by his then GP to consultant neurologists and other consultants, and some of the consultants-� reports resulting from those referrals, had not been provided. Following communications between the parties, the applicant subsequently submitted a detailed list of records he believes should have been released.

On 21 December 2021, the HSE varied its original decision, releasing three extra records to the applicant. It refused access to any further relevant records under section 15(1)(a) of the Act on the ground that no further records exist or can be found. On 13 June 2022, the applicant applied to this Office for a review of the HSE-�s decision in respect of its failure to provide copies of referral letters his GP had written to various consultants and hospitals.

During the course of the review, the Investigating Officer provided the applicant with details of the HSE-�s submissions wherein it outlined the searches undertaken by the GP practice to locate the records sought and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make a further submission on the matter. No such submission has been received.

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 set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant-�s request on the ground that no further 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. Our 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 3 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 the GP practice undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

The HSE said all paper records referring to the applicant are kept in the GP practice in a secure location and that all electronic records are stored on its computer system. It said all paper and electronic records held were forwarded to the HSE in order to process the FOI request. It said the practice manager confirmed that client files are not destroyed but that hard copy correspondence is scanned and attached to the electronic client file and the hard copy record is then shredded

The HSE provided this Office with the storage, archiving, filing and destruction policies of the GP practice. The policy states that files are stored within the practice-�s healthcare system and that backup is run every evening through its computer management provider. It states that the practice no longer uses paper files and all dormant paper files are stored in its reception filed in alphabetical order. It said files of patients who no longer attend the practice are kept in the scanning room at the back of reception.

The HSE said searches were undertaken of the reception/administration area of the practice, where dormant paper files, including the applicant-�s paper file, are stored in alphabetical order. It said searches were also undertaken on the computer database where the applicant-�s computerised file is stored. It said the Nurses room was searched for any correspondence that might have been mislaid and both the storage room and scanning room were searched but no records were found. It said the searches were undertaken by the practice manager as well as one of the GPs. It said the practice-�s computer management provider was also contacted to run a search with the backup files. It explained, however, that backup is carried out every evening and it can only restore the previous day which meant that any searches could only be done up to one day in the past.

The dormant record of the applicant was searched by the GP practice manager going through all notes within the applicant-�s paper chart. An electronic search was also carried out printing all electronic notes from the applicant-�s file. All rooms in the GP practice were searched with one of the GPs searching his notes and his room as he works in the consultation room in which the applicant would have been seen at the time he was a patient in the practice. The HSE further confirmed that while the applicant-�s GP retired from the practice in April 2013, all his files including the applicant-�s medical records remained within the practice.

It is important to note that it is clearly envisaged by the Act that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their 4 whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be in a position to state definitively what happened to the records or why they cannot be found. However, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. The role of this Office is to determine if the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records.

It would appear that at least some, if not all, of the records sought by the applicant may well have existed at some point. As such, it is unfortunate that they cannot now be found. However, as I have outlined above, the question I must consider is whether the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the searches undertaken by the HSE in this case and in the absence of evidence to suggest that further specified searches are warranted, I am satisfied that it has. 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 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 HSE-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to further medical records relating to the applicant on the basis that no further records exist or 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