Whether the HSE was justified in refusing access to additional medical records relating to the applicant-�s deceased partner under section 15(1)(a) of the FOI Act

13  July 2023

Background

On 20 February 2022, the applicant made a request for access to his late partner-�s medical records from 5 January 2022 to date. On 23 February 2022, the HSE asked the applicant to provide supporting evidence in order to process his request. Based upon submissions provided to this Office by the applicant, it appears that the applicant wrote to the HSE on 18 July 2022, providing documentary evidence as well as restating his request. The HSE treated this correspondence as a new request from the applicant. Accordingly, it is the HSE-�s decision on this request which is under review by this Office.

In his request dated 18 July 2022, the applicant sought access to the medical records of his late partner for two periods:

1. From 2017 to 2021, and
2. From 5 January 2022 to 12 January 2022.

The applicant stated that the records should include medical notes/records created by doctors/nurses, copies of x-rays, scans, blood results, details of medications, blood transfusions, biopsy results, copies of the applicant-�s partner-�s consent to medical procedures, and all data from medical machines such as patient monitor, ventilator, CPAP/BPAP system, ECG, EKG, infusion/syringe pump, etc. The applicant specifically requested a copy of his late partner-�s Final Medical report/report of death. He also requested the return of a DVD and hardcopy file comprising his late partner-�s medical records from another Hospital (Hospital B) which had been provided to the specified Hospital (Hospital A) in 2017 when she transferred from one city to another.

On 28 August 2022, the applicant made an internal review request to the HSE on foot of a deemed refusal. On 20 September 2022, the HSE issued what purported to be an original decision granting the applicant access to the records. On 16 January 2023, the applicant applied to this Office for review of the HSE-�s decision on the basis that the records provided solely related to 5 January 2022 to 12 January 2022. The applicant stated that additional records should exist relating to the earlier time period, as well as the medical records that were given to the doctor at Hospital A during his partner-�s first consultation.

During the course of this review, the HSE acknowledged that it had not addressed the first part of the applicant-�s FOI request. Subsequently it released a number of records relating to this time period to the applicant. The applicant informed this Office that these records released by the HSE during the course of this review were illegible and requested that they be re-issued to him in their entirety. Following further correspondence between the parties to clarify the specific records which could not be read, the HSE re-issued the records relevant to the first part of the applicant-�s FOI request in their entirety to the applicant in a legible format. Additionally, the HSE released two discs containing scans from the radiology departments of both hospitals to the applicant, as well as six additional records located during the course of this review.

In its submissions to this Office, the HSE outlined the basis for its position that no further records relating to the applicant-�s request exist. The Investigating Officer provided the applicant with details of the HSE-�s submissions. The applicant was invited to make further submissions, however, to date he has not done so.

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 submissions made by the applicant and to the submissions made by the HSE in support of its decision. I have also had regard to the records released by the HSE during this review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant was of the view that additional records relevant to his FOI request should exist, while the HSE-�s position was that it has, at this point, released all relevant records. This is effectively a refusal to grant access to further records under section 15(1)(a) of the FOI Act.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, to release additional records relating to the applicant-�s request for his late partner-�s medical records, on the basis that no further records exist or can be found.

Preliminary Matters                                                                       

In his submissions to this Office, the applicant stated that the HSE had -�ignored-� his request for medical records and delayed the provision of the records until after an internal review request was made. He also expressed concerns about the manner in which the HSE had engaged with him in processing his FOI request and requested that this Office engage in a section 44 investigation. It is important to note that this review is undertaken pursuant to section 22 of the FOI Act. That section identifies the specific decisions the Commissioner may review and is not concerned with a wider examination of how an FOI body handled an FOI request. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the FOI Act.

Section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any FOI body or bodies for the purposes of enabling persons to exercise the rights conferred by the Act and facilitating such exercise. Under section 44, it would, in principle, be open to this Office to carry out an investigation of a particular public body; for example, if we had concerns about ongoing and widespread non-compliance with decision making time-frames. However, a decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon in practice. Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. I am satisfied that such an investigation is not warranted in this case solely on the basis of the manner in which the HSE processed the applicant-�s requests for records.

Notwithstanding the above comments, I fully accept that the HSE-�s initial handling of the applicant-�s requests in this case fell short of the standards I would expect of a body that has been subject to the FOI Act for many years. It is apparent that the full scope of the applicant-�s request was not addressed by the HSE. Furthermore, I note the issues arising concerning the release of third party records and illegible records to the applicant during the course of this review by the HSE, which also falls short of what is expected of an FOI Body.

Finally, in his submissions to this Office, the applicant raised certain concerns in respect of matters beyond the scope of the FOI Act. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that an FOI body can refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. 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, during the course of this review, the HSE released a number of additional records to the applicant. These records comprised the applicant-�s late partner-�s medical file from 2017 to 2021, six additional records from 2022 that had not been identified earlier, and two discs containing radiological records from Hospital A and Hospital B. The HSE-�s position is that no further records exist or can be found relating to the applicant-�s request after all reasonable searches have been undertaken. I also understand that the HSE provided better quality copies of some of the records already released to the applicant during this review.

As also noted above, the HSE provided this Office with details of the searches it said it undertook in an effort to locate relevant records and its reasons for concluding that no further records other than those which have been released to the applicant during the course of this review exist or can be found. The Investigating Officer provided the applicant with an outline of the HSE-�s submissions in this regard. 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.

Submissions from the Applicant

Following the release of additional records during this review, the applicant indicated that he wanted confirmation that these records represent the entirety of his late partner-�s medical records.

Nonetheless, the applicant appears to be of the view that additional relevant records should exist. As noted above, he sought access to records which he believes were provided to Hospital A in hardcopy by his late partner, as well as a final or death report. However, I note that he has not provided any further substantive evidence or argument in this regard. I also note that he has not responded to the Investigating Officer-�s letter of 7 June 2023, setting out details of the HSE-�s submissions to this Office.

Submissions from the HSE

In its submissions to this Office, the HSE stated that it had searched multiple databases and systems for relevant records, including hard copy medical files.

The records from Hospital B

The HSE said that Hospital A holds records from Hospital B that were provided to a doctor who was treating the applicant-�s late partner in 2017. It stated that Hospital A-�s records show that a letter dated 13 November 2021 from a consultant Medical Oncologist based at Hospital B, indicated that copies of letters concerning the applicant-�s late partner were enclosed with the letter of 13 November 2017. The HSE-�s position is that any records provided by Hospital B would have been uploaded to Hospital A-�s Mosaiq filing system (an ICT system that holds information relating to medical oncology and radiotherapy patients).

The HSE stated that the relevant medical secretary, who was not in the role at the time the applicant-�s partner was attending Hospital A, confirmed that searches were undertaken for the records described by the applicant as an -�approximately 500 page document bound folder and 1 DVD disc (CT/PET Scans)-�. The HSE stated that the doctor concerned and relevant nursing staff confirmed that they did not recall receiving such records from the patient.

The HSE also stated that in order to ensure that all of the -�Hospital B-� records it held were located and considered, Hospital A separately provided the FOI office with a copy of the hardcopy records previously uploaded onto the Mosaiq system. It stated that these records were crosschecked with those previously released to the applicant and at that point it identified a further six records which had not been released. These additional records were released to the applicant during the course of this review.

The HSE stated that it carried out searches of hard copy and soft copy files relating to the applicant-�s request. It also stated that it used keyword searches using variations of the applicant-�s partner-�s name, date of birth and patient number when searching electronic files. It said that all relevant records scanned to Mosaiq or otherwise held by Hospital A relating to the applicant-�s late partner have been released. Essentially, the HSE-�s position is that it conducted reasonable searches for relevant records in this case but that no additional records can be found.

In respect of the applicant-�s request for a death notice record, the HSE stated that a copy of the death certificate could be obtained from the Births, Deaths and Marriages Office. It also provided details of the location of this Office. The HSE said that the applicant informed it that he sought a record which summarised and described in detail what had happened to his partner, which he called a -�final report-�, and that this was not the death certificate. The HSE stated that the Hospital completed a death notification form, which is given to a relative or partner of the deceased. It stated that in order to register a death, the death notification form must be brought to the Births, Deaths and Marriages Office. The HSE-�s position is that the Hospital holds no other record which could fall within this category of record.

Analysis

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situation arise where the records are lost or simply cannot be found. This Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that the applicant believes ought to exist have not been located. Furthermore, this Office does not generally expect public bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a body-�s explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the records sought.

While it appears that the applicant still believes that further records relating to his request should exist, it is important to note that a review by this Office is not concerned with access to records that a request believes 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, or to continue searching indefinitely for records that cannot be found.

I have carefully considered the details of the searches provided by the HSE, and had regard to the HSE-�s explanation regarding the lack of additional records relating to the applicant-�s request. In the circumstances, I find that the HSE was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant-�s late partner on the ground that they do not exist or cannot 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 HSE-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request on the basis that no further 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.

Sandra Murdiff
Investigator