Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further digital records related to the applicant-�s dental and orthodontic records

13 July 2023

Background

In a request dated 22 April 2022, the applicant sought access to his dental records for the period between 2014 and 2016 including orthodontic treatment carried out at a specific hospital and extractions performed at a specific Health Centre. In a decision dated 19 August 2022, almost four months after the applicant-�s original request, the HSE issued a decision wherein it released his dental file in full, which comprised 16 pages.

On 29 August 2022, the applicant requested an internal review. He queried the lack of orthodontic X-rays, casts/moulded dental impressions and other additional records. The applicant also sought better quality copies of a number of pages in the dental records released. In subsequent correspondence with the HSE, he confirmed that he was seeking access to records relating to both dental and orthodontic services during the relevant period. The HSE informed the applicant that its internal review would concentrate on the following: a review of Meath HSE Orthodontic and Dental Services records for any additional x-rays or other records not already released. He did not object to this. The HSE also informed the applicant of its view that dental casts moulds or impressions did not come within the definition of -�record-� as set out in section 2 of the FOI. The applicant disputed its interpretation of the definition.

On 13 October 2022, more than six weeks after the applicant-�s internal review request, the HSE varied its original decision. It provided new copies of the specified pages as requested, as well as a number of additional records, including x-rays and other imaging files, all of which were released in full. The HSE also provided a physical copy of the dental moulds taken in 2014 and 2016. On 27 March 2023, the applicant applied to this Office for a review of the HSE-�s decision. The applicant stated he wanted to receive digital copies of the dental x-rays, in particular one dated 6 June 2014 and digital copies of Pre-Orthodontic Intra-Oral/Extra-Oral Photographs, dated 8 August 2014, as the resolution would be better. The applicant also requested a new copy of the dental moulds provided at internal review stage.

During the course of this review, this Office asked the HSE if it would be willing to provide digital copies of the records in question, which had already been provided in hardcopy. In response, the HSE stated that the applicant had not specified the format of the records sought, and had in fact specifically referred to photocopies in his correspondence with the HSE in relation to his request. However, the HSE subsequently confirmed that it was willing to release a digital copy of the dental x-ray dated 6 June 20124 to the applicant. I understand that this was provided to the applicant on 14 June 2023. It also provided a new printout of the photographs in question. The HSE-�s position is that it does not hold any other relevant records in digital format.

On foot of correspondence with the HSE, the Investigating Officer provided the applicant with details of its submissions wherein it outlined the searches undertaken to locate records relating to his request, as well as an explanation as to why it could not provide the remaining records sought in digital format. The Investigating Officer invited the applicant to make further submissions or comments on the matter. No further comments or submissions have been received by this Office to date.

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 HSE in support of its decision and to the correspondence between the HSE and the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, in his internal review request, the applicant sought copies of casts, moulds or dental impressions created during the relevant timeline. As also noted above, the HSE informed the applicant of its view that such items do not come under the definition of record in section 2 of the FOI Act.

Section 2 of the FOI Act defines -�record-� as including the following:

-�(a) a book or other written or printed material in any form (including in any electronic device or in machine readable form),

(b) a map, plan or drawing,

(c) a disc, tape or other mechanical or electronic device in which data other than visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the disc, tape or other device,

(d) a film, disc, tape or other mechanical or electronic device in which visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the film, disc, tape or other device, and

(e) a copy or part of any thing which falls within paragraph (a), (b), (c) or (d),

and a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record;-�

I note the applicant-�s arguments in his correspondence with the HSE in September 2022, to the effect that whether or not such items were officially defined as records, it did not mean that any -�rules would be broken or violated-� by him receiving copies of the moulds or impressions concerned. I also note his offer to pay a fee to receive copies of the moulds, if necessary.

During the course of this review, the HSE stated that the physical copies of the moulds provided to the applicant are of the best quality that can be achieved. I understand that the HSE has informed the applicant that Primary Care Services will organise a visit to their offices so that he can inspect the original moulds.

While I can understand that these items are of importance to the applicant, I am satisfied that physical copies of moulds, casts or impressions do not come under the definition of record as set out in section 2 of the FOI Act. Accordingly, the HSE-�s decision on these items will not form part of this review.

Having regard to the above, this review is concerned solely with whether the HSE was justified in refusing to release digital copies of certain records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, on the basis that no further records exist or can be located.

Analysis and Findings

Section 15(1)(a)

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 their decision and 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 noted above, the HSE provided this Office with details of the searches it said it undertook to locate relevant records. It also provided details as to which records were held in hardcopy and/or in digital format. The Investigating Officer provided the applicant with an outline of the HSE-�s submissions. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

The remaining records at issue are digital copies of dental photographs from 2014 and any other dental x-rays available digitally. In relation to the photographs, the HSE said that digital copies were not available. It stated that the images concerned had been captured on a camera and then uploaded to the patient-�s file on Orthotrac, a dental practice software package. The HSE said that it was not possible to download photographs from this system to send by email. Essentially, it said that the version of the license it holds for this software would not allow photographs to be exported digitally. It also said that it could re-scan the photographs and save them to a disc, but that this would be likely to reduce the quality of the images.

The HSE stated that the Primary Care service had made every effort to source any records relating to the applicant-�s request held in hardcopy or softcopy. It said that extensive searches were undertaken to locate these records in number of different sites, including off-site storage and the relevant digital patient management system. As noted above, the Investigating Officer provided an outline of the HSE-�s submissions to the applicant and invited him to comment. No comments or submissions were received from the applicant.

Section 17(2) of the FOI Act provides that an FOI body shall provide access to a record in the particular form or manner requested, unless certain circumstances apply. However, I note that the applicant did not specify digital access in his original request. I also note that the HSE has not relied on section 17 in this case. Furthermore, neither party is arguing that access would be more efficient in a different format. Instead, the issue in this case is whether the HSE holds the records sought in digital format at all.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires 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. Furthermore, it is open to this Office to 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.

I have had regard to the HSE-�s submissions regarding the steps taken to locate records in this case, as well as to its explanation as to why it cannot provide digital copies of all of the records sought. I have also had regard to the digital x-rays provided to the applicant by the HSE during the course of this review.

I understand that the applicant is frustrated with the lack of digital copies of the records sought, as well as the length of time taken to process his request, which did not meet the timeframes set out in the FOI Act. In this regard, I note that the HSE has not explained to the applicant why a decision on his original request, which the HSE said it received on 28 April 2022, did not issue until 19 August 2022. I would expect the HSE to have regard to its obligations under the FOI Act to issue decisions in a timely fashion in future.

However, the question I must consider is whether the HSE has taken all reasonable steps to locate additional relevant records in this case. While I note that the applicant sought digital copies of x-rays and other records which have not been provided, I am satisfied that the HSE has provided an adequate explanation as to why this cannot be done. Accordingly, I find that the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for further relevant records on the grounds that no further digital records exist or can be found.

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 further digital copies of dental and orthodontic records relating to the applicant 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