Whether the HSE was justified in refusing access to additional records held by the Occupational Health Department of the HSE relating to the applicant, under section 15(1)(a) of the FOI Act

28 June 2023

Background

I understand that the applicant was previously employed by the National Ambulance Service (the NAS). In August 2022, she made an FOI request seeking a copy of the various records from the Occupational Health Department of the HSE, in particular:

• All correspondence from her various line managers to Occupational Health relating to her,
• All correspondence including letters, reports, etc., from medical staff in Occupational Health relating to her, following correspondence and/or telephone or in-office meetings with her, which were recorded or sent to her line managers,
• All correspondence from doctors in Occupational Health to any consultants relating to her.

On 27 September 2022, the HSE granted the request and released records to the applicant. On 22 November 2022, the applicant made an internal review request as she believed other records should exist. She said that the records provided did not include any correspondence between Occupational Health and her line managers or the NAS. She also queried the absence of a record of a telephone consultation she had with a named doctor in June or July 2021 and his subsequent report.

On 8 December 2022, the HSE varied its decision and released a report prepared by the named doctor. On 24 January 2023, the applicant sought a review by this Office of the HSE-�s decision. In particular, she said that no records relating to the telephone consultations she had with the named doctor were provided. She also said that the doctor-�s initial sign-off report to her line manager was not provided. She was of the view that these documents should be part of her Occupational Health file.

During the course of this review, the Investigating Officer provided the applicant with details of the HSE-�s submissions wherein it outlined its reasons for concluding that additional records relating to her request did not exist or could not be found. The applicant responded with a number of comments.

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 the HSE.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, to release additional records relating to the applicant-�s request.

Analysis and Findings

Section 15(1)(a)

It is the applicant-�s position that further records exist and should have been released to her. It is the HSE-�s position that all relevant records have been identified and that every effort has been made to locate all records relating to the applicant. This is effectively a refusal to grant access to any further records under section 15(1)(a) of the FOI Act.

Section 15(1)(a) of the FOI 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 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The HSE provided this Office with a description of the searches it undertook to locate records relevant to the applicant-�s request, details of which were provided to the applicant during the review. Therefore, while I do not propose to repeat the details in full here, I can confirm that I have had regard to its submissions in full. In summary, HSE said that an occupational health file normally contains information pertaining to a staff member including pre placement health assessment form, vaccination results/reports, medical reports provided by the individual or from their treating GP/Physician, self-referral forms, management referral forms, reports to line managers/clients, physio referrals, etc.

The HSE stated that it carried out searches on the applicant-�s Occupational Health file, including hardcopy and electronic files. It said that upon receipt of the internal review request, it carried out fresh searches. It said that these searches included using additional keywords such as names and dates of birth similar to the applicant-�s. The HSE also said that additional checks were carried out to ensure that no filing errors occurred, but no such errors were identified. It stated that the FOI Officer contacted NAS Headquarters at internal review stage to clarify whether any additional reports completed by the named doctor were held on the applicant-�s file there and an additional report was located.

The HSE stated that the doctor in question worked in Occupational Health from July 2021 to June 2022, but that he no longer works for the HSE. Essentially, it said that any telephone consultations would have been documented on the applicant-�s Occupational Health file. The HSE stated that any subsequent reports would be given to the Occupational Health administration team to scan to the applicant-�s file and a copy would also be sent to the applicant-�s line manager by post. It said that as the doctor concerned no longer worked for the HSE, it was not in a position to say whether additional records ever existed. The HSE stated that owing to the small number of staff that work in the Occupational Health Department, it was satisfied that all relevant individuals had been consulted to carry out searches.

The Investigating Officer wrote to the applicant with the details of the HSE-�s submissions. In response, she said her that Occupational Health file should be very small. She said that given the unique nature of her name the search would be easy. She indicated that she was not confident in the HSE-�s ability to carry out searches as it had located an additional report at internal review stage, having initially said that it could not be found or did not exist. The applicant said that the doctor told her that as her consultation would be one of his first reports, that the head of Occupational Health would consult on her case. She said that she understood that the head of Occupational Health would prepare and sign off on the report, rather than the doctor she had spoken to.

The Investigating Officer asked the HSE to comment on the relevant matters raised by the applicant. The HSE said that the Head of Occupational Health retired in 2022. It said that in his role, the Head of Occupational Health -�never kept any records or letters regarding patients-�.  It stated that, due to the type of service that Occupational Health provides and the sensitivity of the information it manages, all of its doctors write their own reports. It said that Occupational Health doctors do not send any initial reports to a line manager or other medical colleagues for review. The HSE said that while it might be possible that the applicant-�s doctor gave her the impression that his supervisor would write the report, it was satisfied that this was not the case. Its position was that the Head would not have written any reports on the applicant as he had not reviewed her.

The HSE said that Occupational Health reports are dictated and checked by the relevant doctor, then scanned onto the individual-�s Occupational Health file and sent to their line manager. In this case it appears that the doctor-�s sign-off report was not scanned to the applicant-�s Occupational Health file. As noted above, at internal review stage the HSE contacted the applicant-�s manager who had a copy of the file. The manager provided a copy of the file to the HSE, which released it to the applicant. It also scanned the file onto the applicant-�s Occupational Health file.

The applicant is of the view that as the sign-off report was located, the HSE should have been able to locate the initial report/notes of telephone consultations created by the same doctor. Essentially, the HSE-�s position is that no other reports or records of telephone consultations were held on the applicant-�s Occupational Health file, that the doctor cannot be contacted to query this and that her original request specifically requested information held by Occupational Health. On that basis, the HSE stated that it confined its searches to the Occupational Health Department only.

It is unfortunate that the report located at internal review stage was not located earlier. However, having regard to the submissions provided by the HSE, which outline the searches that were undertaken to locate records relating to the applicant-�s request and to its explanation for concluding that no further records exist or can be found, I am satisfied that the HSE has taken all reasonable steps to locate additional records in this case. It is also unfortunate that the doctor concerned no longer works for the HSE and cannot shed any light on the records which seem to be missing from her file. However, while I note that the applicant does not accept the HSE-�s explanation, there is nothing before me to indicate that further searches are warranted in this case.

It is important to note that the FOI Act is not concerned with access to records that a requester believes ought to exist. We do not generally expect FOI 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 an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable. In this case, having regard to the volume of records already released, the description of the searches undertaken and its explanation as to why it considers that additional records do not exist or cannot be found, I am satisfied that the HSE has taken reasonable steps to locate records relevant to the applicant-�s request. Accordingly, I find that the HSE was justified in its effective refusal to release any additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act.

For the benefit of the applicant, I note that the report which was released at internal review stage came from her line manager. It is of course open to her to make an FOI request or to otherwise seek access to any other records held locally by her line manager which were received from Occupational Health.

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 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