Whether TUH was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the applicant-�s admission to the National Children-�s Hospital in or around 1957/1958, on the ground that the records sought do not exist or cannot be found

19 October 2022

Background

The applicant in this case believes he was admitted to Harcourt Street Children-�s Hospital (the National Children-�s Hospital) in or around 1957/1958. TUH is an amalgamation of the National Children-�s Hospital, the Meath and the Adelaide Hospitals, which merged and relocated to Tallaght in June 1998. In a request to TUH dated 16 March 2022, the applicant sought information regarding his medical history from the National Children-�s Hospital. In a decision dated 24 March 2022, TUH refused the applicant-�s request on the ground that the records sought do not exist or cannot be found. The applicant sought an internal review of that decision on 7 April 2022, following which TUH affirmed its refusal of the request. On 28 June 2022, the applicant applied to this Office for a review of the decision of TUH.

During the course of the review, the Investigating Officer provided the applicant with details of TUH-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records exist or can be found. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did, and I have considered them fully in conducting this review.

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

Scope of Review

This review is concerned solely with whether TUH was justified in its decision to refuse access, under section 15(1)(a) of the Act, to records relating to the applicant-�s admission to the National Children-�s Hospital in or around 1957/1958, on the ground that the records sought do not exist or cannot be found.

Preliminary Matters                                                                        

Before I address the substantive issues, I would like to make two preliminary comments.

First, for the benefit of the applicant, I wish to explain that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. In the circumstances, I will consider whether TUH was justified in refusing access to any relevant records it holds containing the information sought in this case.

Secondly, while I can appreciate how important it is to the applicant to obtain access to the records at issue, 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 information in question, 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 (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. 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 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, TUH provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no 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.

In summary, TUH explained that it retains a log on its electronic system of patients from the National Children-�s Hospital. It said its electronic system contains searchable information for old patient records stored offsite, which was captured when the old records were identified and archived. It said if the patient records were archived, their details, along with any old Medical Reference Numbers (MRNs), would appear in the search results. It said it uses the MRN to check the number of the log spreadsheet to identify which offsite box the patient-�s records are stored in.

TUH said it searched its system for the existence of any patient records relating to the applicant using a combination of his first name, surname and date of birth, however, there were no matching results. It said four National Children-�s Hospital boxes were searched on the off-chance that any patient records might have been stored without the information being logged on its system, but no records matching the applicant were identified.

As I outlined above, details of TUH-�s searches were provided to the applicant. In response, he argued he had two sources of proof that he was a patient in the National Children-�s Hospital. The Investigating Officer invited the applicant to provide evidence in support of his argument, following which he forwarded a number of records to this Office. TUH, having been provided with the information contained in the records for its consideration, comprising reference and file numbers, subsequently stated that the information was not allied to any records held by it. As such, it did not enable any further searches. The applicant then informed the Investigating Officer that he had a record of a date of birth which differed to that on his birth certificate. TUH, having been provided with the alternative date of birth, duly carried out a further search on its SMS Data system, however, no records relating to the applicant were located.

Following a request by this Office for clarification on a number of related matters, TUH said it holds very few records of patients who attended as far back as 1957 as historically, procedures for retaining records differed from hospital to hospital and the formal retention of records only came about in later years. It said there was a flood in the basement of the National Children-�s Hospital and when the hospital was moving to TUH it was discovered that a lot of records were destroyed. On receipt of the details of TUH-�s further submission, the applicant said he does not accept that his medical history does not exist or cannot be found, whether lost or destroyed, and that he was entitled to his medical information under the Birth Information and Tracing Act 2022.

Section 15(1)(a) of the FOI Act does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

Furthermore, this Office has no remit to examine, or make findings on, whether or not the National Children-�s Hospital created all records that it should have created in relation to its care of the applicant in the late 1950s, or to determine whether or not it should have ensured that it retained such records. On that point, I accept that policies and practices for creating, filing, and retaining records in the 1950s would have been very different to what would be expected in 2022.

While TUH is unable to say categorically if any records pertaining to the applicant were lost or destroyed in the intervening years, it is possible that records that might have been created in relation to the applicant could have been destroyed and/or lost. In the circumstances, and having considered the details of TUH-�s explanation of the searches undertaken, I am satisfied that TUH has, at this stage, taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that TUH was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for records on the ground that no 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 decision of TUH to refuse access, under section 15(1)(a) of the Act, to records relating to the applicant-�s admission to Harcourt Street Children-�s Hospital in or around 1957/1958, on the ground that no relevant 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