Whether UCC was justified in refusing access to particular x-rays on the basis that they do not exist or cannot be found (section 15(1)(a))

1 February 2022

Background

The applicant’s FOI request to UCC dated 3 March 2021 sought access to “all medical records” that she had previously requested of a named doctor. She sought also a full and comprehensive list of all other medical reports on her file in addition to all x-rays and x-ray reports/reviews that she had requested to date. She said that “all other medical reports” included all student reports and all senior staff/professor/supervising dentist’s reviews and reports.

UCC’s decision, also dated 3 March 2021, granted access to all records contained on the applicant’s patient chart and attached a schedule listing all records relating to the request. Regarding x-ray images, it told the applicant that she could obtain original film for two x-rays taken before 2014 upon signing an undertaking to return them to the Hospital if required, and provided a disk of a digital x-ray taken in 2018. The applicant does not appear to have taken issue with the form of access given to these x-rays.

The applicant sought an internal review on 7 May 2021. She said that “surround”/ “panoramic” x-rays taken in 2012/2013, and further correspondence which she described, had been omitted. She also said that the records must be issued to her in chronological order. She said that the listing of records in UCC’s schedule was not chronological and complained about various actions of a particular staff member. She described further searches that she expected to be carried out.

UCC’s internal review decision of 10 June 2021 affirmed its original decision. It said that it had carried out further searches on foot of her appeal and that no further relevant records were found. In effect, this was a claim under section 15(1)(a) of the FOI Act (reasonable searches/records do not exist). It told the applicant that it was not required to provide records in chronological order and said that it had already given her a detailed schedule. On 4 August 2021, the applicant applied to this Office for a review of UCC’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, UCC and the applicant and the provisions of the FOI Act. 

Scope of the Review

The initial application to this Office concerns UCC’s failure to provide the applicant with “patient surround” x-rays. Her subsequent submission reiterates this but also raises various other matters.

This Office’s Investigator told the applicant that the Commissioner’s review is confined to the matter of the “surround” (or “panoramic” or “patient surround”) x-rays.  However, the applicant says that the review should extend to her correspondence with UCC. In this respect, I note that the Investigator gave the applicant UCC’s comments regarding the particular correspondence she had identified at internal review stage as missing, whilst also noting that such records were not covered by the review. In summary, it is UCC’s position that it does not hold correspondence on patient charts other than those directly related to patient care. It says that it did not release letters and emails because it did not consider them to fall within the applicant’s request for her medical records. It says that these records can be released if the applicant wants them. It also explains its position as to why a particular letter does not appear to exist.

The applicant says that she has seen her medical file and that it has contained correspondence from the very outset of treatment. She says that the records released to her include some correspondence and therefore UCC cannot claim that the request does not cover correspondence. In addition, she asks for the additional correspondence to be forwarded to this Office for further investigation of that part of her submission concerning the actions of the UCC staff member (to which I will refer further below). She says that OIC may thereafter forward the records to her with this decision.

It is important to note that the wording of an original request determines the type of records that a body must identify and consider for release under the FOI Act. In turn, a review by this Office cannot consider the potential grant of access to records that were not sought in an original request in the first place. The release by an FOI body of records that are not covered by a request does not have the effect of broadening that request.

In this case, the applicant’s request sought “all medical records” and on its face does not seek correspondence with UCC. That said, a distinction might perhaps be drawn between correspondence directly relating to one’s medical treatment and correspondence in relation to administrative matters such as refunds, obtaining copies of records, etc. However, I see no reason to consider such matters in this case, given that UCC is willing to release the further correspondence to the applicant. I would ask it to do as soon as possible.

If the applicant considers particular correspondence to be absent from this material, it is open to her to make a further FOI request for such records and in due course to seek an appeal of UCC’s decision on that request, if necessary. The overall effect of this is no different to the decision I would make if satisfied both that her request extended to correspondence and that UCC’s searches for such records were not reasonable. In such an instance, I would annul UCC’s effective refusal of the correspondence, and direct it to carry out further searches for such documents and issue a new decision on them in accordance with the provisions of the FOI Act.

As noted above, the applicant’s submission raises various matters. She complains about UCC’s administration of her FOI request, including the schedule given to her. She complains about the actions of a particular staff member, including the omission of correspondence from this person in response to the applicant’s initial queries about her x-rays. She believes that the Commissioner may need to carry out a review of UCC’s records management, accounts management and associated administrative structures, as well as its professional culture.

As this Office’s Investigator has explained to the applicant, a review under section 22 of the FOI Act cannot extend to examining, making findings on, or taking account of an FOI body’s administration of an FOI request, or an FOI body’s record management practices. Neither has the Information Commissioner remit under the FOI Act to examine the structures or culture of any FOI body, any administrative matters, clinical judgment/decisions, or indeed complaints about the actions of public servants.

Accordingly, this review is confined to whether UCC is justified in its effective reliance on section 15(1)(a) of the FOI Act in relation to the “surround” (or “panoramic” or “patient surround”) x-rays that the applicant says are missing from her file. It should be noted that it does not extend to providing the applicant with answers to questions about the make, model, etc. of various items of UCC equipment. In addition, the Commissioner has no power to review the adequacy of UCC’s schedule or to require it to produce a further schedule that meets the applicant’s requirements. While it is good practice for bodies to produce schedules, this is not required by the FOI Act itself.

Finally, I note that the applicant takes issue with various aspects of the Investigator’s handling of her application for review. I do not intend to address her comments other than to say that the Investigator inadvertently omitted referring to “Email 8” when confirming that this Office had received the eleven attachments to the applicant’s submission of 16 August 2021. I can confirm that this and all other documents on file have been considered as part of my review.

Findings

Section 15(1)(a) – reasonable searches/records do not exist

A review of an FOI body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist.

As the Investigator told the applicant, it is not normally the function of this Office to search for records. Furthermore, while the applicant’s version of events differs to UCC’s, the Commissioner has no role in determining what particular events took place. Section 15(1)(a) may be applied where a record, which is accepted by all parties to have been created, cannot be found after all reasonable steps to locate it have been taken.

The applicant’s submission

The applicant says that the “surround x-rays” she is seeking are also known as “OPGs” (orthopantomograms). She says that such x-rays were taken of her skull, jaws and neck on two occasions in 2012/2013 but does not elaborate further on the dates. She gives various details about the circumstances and room in which she says these were taken. She says that the first x-ray was part of a treatment plan work-up, further to which she was told that her molar root on the lower right hand side was safe to be retained. She says that the agreed treatment plan was later changed to require extraction of the root and that a further set of these x-rays was taken after the root was extracted.

She says that the x-rays cost €50. She says that she was charged for the first pre-extraction set of x-rays, but got a small, hand-written receipt rather than a standard receipt. She says that she was not charged for the second x-ray.

Finally, she says that UCC’s email to her of 1 March 2021 states that it initially converted all non-digital x-rays to a digital format but stopped doing so. She says that the phrase, “in 2014 we digitised our images”, as contained in the email, is highly significant and a specific technical phrase. She says that this Office should establish whether UCC can/did convert x-ray film to a digital image and whether it has done so in relation to her own pre-2014 x-rays.

UCC’s submission

UCC says that the applicant attended its Emergency clinic on 25 May 2012. It says the clinical notes say there was a grossly decayed lower molar tooth and that the applicant was then referred to its Restorative Department, which determined that the tooth could not be restored. It says that, according to the notes, the applicant agreed to an extraction during her appointment in May 2012. It refers also to a referral it received from a General Dental Practitioner whom the applicant attended in July 2012, requesting an appointment for an extraction of the root and mentioning images taken by the General Dental Practitioner. It says that in cases where patients attend with images taken externally, the images are returned to the patient and are not kept on file. It says that the tooth was extracted in May 2013 and that there is no evidence in the notes or on the attendance record of any follow up appointment in the Oral Surgery Department. It says that the patient chart does not contain notes or references from any department or clinician regarding additional imaging post operatively. It says that this would only usually be done if there were post-operative complications. It says that there is no evidence of this in the patient record.

In terms of how it stores medical records generally, UCC says that it files them using the last two digits of a patient’s unique six-digit identifier (a terminal digit system). It says that it has searched for records relating to the applicant using her first name, surname, first name and surname, and date of birth, and that this did not identify any duplicate records for her.

UCC is strongly of the view that there is no chance that x-rays relating to the applicant were placed on the wrong patient file. It says that all patients attending the Radiology Department are asked for their name, address and date of birth, which is checked against the file retrieved from the filing system to ensure that the correct file has been identified. It says that patient throughput is low per student and that there would not be a large amount of charts in the clinical area where the patient is being treated. It says that the student will normally only have the chart of the patient they are treating and therefore the potential to use the wrong chart is practically eliminated. Although, as noted, it maintains that there no chance of the wrong chart having been used, it offers to search the charts of other patients who attended the student dealing with the applicant, if she wishes to confirm the date that she thinks she had the relevant x-rays.

UCC says that radiology staff do not take images unless they are requested by clinicians in writing on the patient’s chart, to which a clinical note of the finding of the x-ray is very often added. It says that all radiology requests are entered on a log book in the radiology department, which is used to call the patient from the waiting area in for the requested image to be taken. UCC says that it has reviewed this log book from the date of the applicant’s first attendance in 2012, and identified radiology requests for three attendances, which are confirmed in her notes, on the request forms on her chart and on its x-ray system.

Regarding the applicant’s position that she paid €50 for the first set of surround x-rays, UCC says that radiology when in treatment is often not charged separately and would be included in the cost of treatment. It says that the only payment of €50 on the applicant’s patient account concerns the extraction of a wisdom tooth.

UCC says that it moved from using x-ray film to a digital system in 2014. I understand that it can no longer print copy radiograph films i.e. images taken before 2014, because the required equipment is obsolete. It provides original x-ray films once a patient signs an undertaking to return them if they are required. It says that it has never told the applicant that it can convert x-rays and that it has been clear in telling her that it cannot do so.

Analysis & Findings

I note the applicant’s detailed descriptions and her request for this Office to carry out independent searches. However, I do not believe that the circumstances of this case require a departure from our normal procedures. I should also stress that, while the applicant may expect exhaustive searches to be conducted, this is not what is required by section 15(1)(a) of the FOI Act. Rather, the provision requires the taking of all reasonable steps.

UCC’s submission describes how it normally files patient records, and how it has sought to establish whether any duplicate file for the applicant exists. It has explained why it believes the records sought by the applicant are unlikely to have been placed on the incorrect file but has nonetheless offered to check files of certain other patients upon receipt of further details from the applicant. This Office’s Investigator advised the applicant of UCC’s offer. I note that the applicant’s response did not address this.

UCC’s submission describes the types of records it normally creates in relation to x-rays, how it sought to establish what x-rays were taken in the applicant’s case, and how such details are reflected in her file. It has also responded to the applicant’s position that she paid for the first set of x-rays. The Investigator told the applicant that it was open to her to provide this Office with a copy of the receipt that she had said been given, so that UCC’s comments could be sought on a description of it. The applicant did not provide any such copy or make any further comment in this regard.

UCC’s submission also sets out its position that it cannot convert x-ray film to a digital image. I note the applicant’s position regarding the significance of the comment regarding digitisation in the email of 1 March 2021. The email says ”[h]istorically we printed images on x-ray film, however in 2014 we digitised our images. We were able initially to print copy radiograph films (for images taken prior to 2014) but unfortunately this is no longer possible as that equipment is obsolete.” The email goes on to explain that UCC can issue copy radiographs for any images taken since 2014 on disk, and that it provides original films for x-rays taken before 2014 upon the signing of an undertaking. The email does not, in my view, give any indication or assurance that UCC can convert any pre-2014 x-ray film to a digital image. Rather, it seems to me to be part of an overall explanation of how UCC moved in 2014 to a digital x-ray system from a film-based one and the unavailability of equipment for printing copy radiograph films.

Having carefully considered the various arguments, I am satisfied from UCC’s submission that it has taken reasonable steps to look for the particular x-rays sought by the applicant. I find that section 15(1)(a) applies to such records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC’s decision that section 15(1)(a) of the FOI Act applies to the “surround” (or “panoramic” or “patient surround” or OPG) x-rays from 2012/2013 as sought by the applicant.

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.

Deirdre McGoldrick

Senior Investigator