Whether the NMH was justified in refusing, under sections 37(1) and 15(1)(a) of the FOI Act, the applicant-™s request for access to her deceased mother-™s medical records

18 April 2023

Background

In an email dated 17 September 2021 to the NMH, the applicant said she was looking for information on where her stillborn twin was buried. She explained that her mother had passed away. In correspondence with the applicant, the NMH cited request reference 210/21. In its subsequent response of 18 October 2021, the NMH said its records did not show any details of a twin pregnancy for the applicant-™s late mother. No reference was made to any particular provisions of the FOI Act.

It appears that there were further communications between the parties following which the NMH informed the applicant by email that she was not entitled to a copy of her mother-™s records as they are considered personal to her mother. Again, no reference was made to the FOI Act or any exemptions that would prevent the release of the records sought. On the same day, the applicant replied to the NMH asking if her father would be entitled to apply for access to her deceased mother-™s records, as her next of kin. In the following months the applicant sent several more emails to the NMH looking for an update on her request. She did not receive a definitive response until 16 March 2023 when the NMH said it had conducted a review of her mother-™s medical records and that unfortunately it was unable to provide her with a copy of the records. Yet again, no reference was made to the FOI Act or of any rights of appeal. The applicant replied the same day specifically making an FOI request for her mother's records, noting that the FOI Act provides for access to records of deceased persons in certain circumstances.

On 25 April 2022, the NMH said that on review of the matter, a decision had been made to release information relevant to the request. It again cited request reference 210/21. It said that it was providing a copy of the Delivery Ward Register and Index Card pertaining to the applicant-™s birth, which it said indicated that hers was a single infant delivery with no record of a twin or stillbirth. It said it had conducted further searches of its secondary storage facility and could not locate any further records relevant to her birth. Yet again, no details were provided of rights of appeal.

On 29 April 2022, the applicant emailed the NMH yet again. She said she was unhappy with the information she had received to date and requested access to her mother-™s full medical files. She said her mother had attended the NMH for 10 pregnancies and a hysterectomy. In a decision dated 13 June 2022 the NMH refused the request under section 37(1) of the FOI Act. Again citing request reference, it said the applicant could apply for a review of the matter by this Office.

On 13 June 2022, the applicant sought a review by this Office of the NMH-™s decision. In correspondence with this Office, the NMH said that applicant had not formally sought an internal review and had, in fact, changed her request. This Office advised the applicant to apply for an internal review of the decision made on her request for records relating to her mother, which she did on 24 June 2022. On 11 July 2022, the NMH affirmed its decision. On 13 July 2022, the applicant applied to this Office for a review of the NMH-™s decision.

In the course of the review, the Investigator sought focused submissions from the NMH on three separate occasions, attempted to contact the FOI Officer by email and phone numerous times looking for details of the searches undertaken for the records requested and seeking clarification on other aspects of the case. Reminders were also sent when deadlines for these submissions passed. The NMH said that it had nothing further to submit that hasn-™t been outlined previously to this Office and did not provide submissions giving any more details explaining its decision.

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 and the correspondence with this Office as well as the contents of the records themselves.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The manner in which the NMH dealt with the applicant in this case as summarised above has caused considerable confusion both for the applicant and for this Office. The NMH has been subject to the FOI Act for a considerable period of time and it is unfortunate that it did not adhere to the statutory requirements of the Act when engaging with the applicant, which include giving reasons for decisions, citing relevant exemptions where records are being withheld, and informing requesters of their rights of review.

Nevertheless, having considered the various exchanges between the parties, I am satisfied that the applicant has made a request for her late mother-™s records and that this request was, for the most part, refused. Indeed, the NMH has acknowledged that the applicant made a fresh request for her late mother-™s records but it did not treat it as such. The revised request incorporated the records that were originally sought in the first request. The NMH has identified only five records as falling within scope and have released two. According to the applicant, there should be further records as her deceased mother had 10 deliveries and a hysterectomy at the NMH. However, the NMH claims these records cannot be found. 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. Accordingly, this review is concerned with whether the NMH was justified in refusing access to those records that have been withheld in whole or in part under section 37(1) and whether it was justified in refusing access to any other relevant records under section 15(1)(a).

Analysis and Findings

It seems to me that the NMH has made little or no effort to properly consider the applicant-™s request for access to all of her late mother-™s records. It made very limited submissions in respect of the searches undertaken to locate the records and at no stage did it consider if the applicant had a right of access to the records sought as the next of kin of her late mother.

As I have explained above, 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. Given the submissions made by the NMH to date, I simply cannot find that it has taken all reasonable steps to ascertain the whereabouts of the records sought. In these circumstances, I consider that the most appropriate course of action to take is to annul the NMH-™s decision and to direct it to make a fresh decision on the applicant-™s request for her late mother-™s records in accordance with the provisions of the FOI Act. If the applicant is not satisfied with the new decision made by the NMH, the usual rights of review will apply.

I appreciate that this means yet another delay in the applicant receiving a definite outcome on her request. Accordingly, if the applicant finds it necessary to once again apply to this Office for a review of the NMH-™s decision on her request, we will endeavour to process the review as quickly as possible.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the NMH-™s decision on the applicant-™s request for access to her late mother-™s records. I direct it to process the request afresh.

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