Whether the HSE was justified in refusing access to additional records relating to the applicant's complaint concerning a named doctor on the basis that no further records exist or could be found under section 15(1)(a) of the FOI Act

19 June 2023

Background

The applicant is a HSE service user. It appears that he is unhappy about care he received from a particular doctor. In late 2020/early 2021 he met with a Complaints Officer and an Assistant Director of Nursing in a particular area of the HSE to discuss his concerns. Following that meeting he engaged in correspondence with the HSE concerning this matter.

On 9 September 2022, the applicant made an unnumbered 14-part FOI request to the HSE for access to various records including internal notes, emails, telephone recordings and other records arising on foot of his meeting with the individuals concerned and his subsequent complaint. He referred to a number of named individuals who were involved in the complaint process. The applicant also sought access to records relating to contact between the Office of the Ombudsman and the HSE about his complaint and correspondence to the HSE on his behalf by a named public representative (Senator X).

On 6 December 2022, the HSE issued a decision wherein it amalgamated a number of the parts of his request, so that it addressed 12 separate categories of records. I shall use the HSE's numbering scheme for ease of reference. It released a number of records relating to part 6 of his request, subject to the redaction of some information on the basis that it related to the personal information of third parties (section 37(1) of the FOI Act refers). It refused parts 1, 2, 3, 4, 5, 7 and 9 of his request on the ground that relevant records could not be found or did not exist (section 15(1)(a) of the FOI Act refers) and provided details of the searches undertaken to locate records. The HSE also said that it was awaiting a response from the relevant individuals' offices in relation to parts 8, 10, 11 and 12 of his request and that it would "provide a further update to [its] decision on receipt".

On 3 January 2023, the applicant made an internal review request. He referred to the length of time taken to respond to his original request and queried the lack of response in relation to parts 8, 10, 11 and 12 of his request. On 10 January 2023, the HSE issued what appeared to be a second original decision in relation to records held by the two staff members concerned. It relied on section 15(1)(a) to refuse parts 8, 10 and 12 of his request and released two records relating to part 11.

The applicant made an application for a review by this Office as he had not received an internal review decision from the HSE (Case OIC-135556-H8X7V0 refers). On 13 March 2023, on foot of correspondence from this Office, the HSE issued an effective position. The decision letter is comprehensive and provides a detailed explanation of the searches carried out in an attempt to locate records within the scope of the applicant's request. This Office's file in case OIC-135556-H8X7V0 was closed.

On 4 April 2023, the applicant sought a review by this Office of the HSE's internal review decision. He raised concerns about the adequacy of the searches and about a possible conflict of interest in the processing of his FOI request, as the FOI decision makers were the same individuals who had investigated his complaint. He asked that this Office investigate this alleged conflict of interest.

During the course of the review, the Investigating Officer informed the applicant 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. She also provided him with details of the HSE's submissions wherein it outlined the searches undertaken and its reasons for concluding that no additional records existed. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did.

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 applicant's submissions and correspondence with this Office. I have decided to conclude the review by way of a formal, binding decision.

Preliminary Matters

In correspondence with this Office, the applicant stated that there should be four pieces of correspondence between the HSE and Senator X, but that only two such records had been released to him. The Investigating Officer queried this with the HSE, which said that it was aware of a parliamentary question (PQ) which had been raised on behalf of the applicant, but that this had been done by a TD, rather than the Senator concerned. Essentially, the HSE's position was that it held two records relating to correspondence with the Senator and two relating to correspondence with a TD about the applicant. Having regard to the specific wording of the applicant's request, the HSE said that the correspondence with the TD relating to the PQ was not within the scope of his request. However, it indicated that it is willing to release these records to the applicant if he wishes. If the applicant would like a copy of the records he should contact the HSE.

As noted above, 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 the actions taken by FOI bodies.

In relation to the applicant's concerns about the integrity of the FOI process where the decision makers were also involved in his complaint, I should state that this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI Officers.

Scope of Review

I note that the applicant has not sought a review of the HSE's reliance on section 37 to withhold third party personal information from the records released. Accordingly, this review is solely concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records coming within the scope of the applicant's request, other than those already released.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that an FOI body may 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.

The HSE's effective position provided the applicant with a very detailed account of the searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard the details for the purpose of this review. It said that all staff named in the request carried out searches of their records except the named doctor about whom the complaint relates. It stated that the doctor has not worked with the HSE for a number of years. It also said that it does not record telephone conversations and therefore no such records exist.

Essentially, the applicant stated that he outlined his concerns at the initial meeting and following that he forwarded a "draft complaint" to the HSE in order to clarify whether his complaint could be investigated. He said that subsequently, he sent a formal written complaint by registered post, which was signed for by the HSE. However, he stated that he received no response or no notification that his complaint could not be processed. He is seeking access to records which relate to the HSE's handling of his initial draft complaint and his subsequent formal complaint.

In its submissions to this Office, the HSE stated that non-clinical complaints are handled under its complaints policy "Your Service Your Say" (YSYS) with rights provided to Internal Review within the HSE and to External Review by the Ombudsman or Ombudsman for Children. It said that matters relating solely to the exercise of clinical judgment, or an action taken by the HSE solely on the advice of a person exercising clinical judgment, are excluded from investigation by the Complaints Officer under Part 9 of the Health Act 2004. The HSE's position is that the applicant's complaint related to clinical judgment, in that it pertained to the professional conduct of the consultant involved in the applicant's care and his treatment, care and diagnosis. The HSE said that a complaint file was opened by the Complaints Officer on receipt of the applicant's draft complaint as it is the role of the Complaints Officer to co-ordinate the response to the complainant. However, it said that it was not deemed to be a complaint that could be investigated under the HSE's YSYS policy and that therefore, no rights of review by the Ombudsman were provided to him. Accordingly, it said that it would not expect there to be any records relating to an investigation by the Office of the Ombudsman.

The Investigating Officer wrote to the applicant with details of the HSE's submission. The applicant provided a very detailed response. I do not propose to deal with each point in detail but I wish to confirm that I have had regard to his correspondence. The applicant essentially disagreed with the HSE's version of events and maintained that it received his formal complaint sent by registered post and said that it was obliged at that point to open a file and investigate his complaint. He remains of the view that additional records should exist.

The applicant also raised concerns about the completeness of the HSE's searches. The Investigating Officer asked the HSE about the complaint which the applicant stated had been sent by registered post and signed for by staff in the relevant area. In response, the HSE said that the relevant record holder stated that the service area did not receive a copy of the formal complaint. Its position was that the only complaint received was in draft form. Essentially, the HSE stated that the applicant's draft complaint was reviewed by the Complaints Officer and Clinical Director of the service area and it was decided that it could not be dealt with under the YSYS policy.

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 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 an applicant believes ought to exist have not been located.

I understand that the applicant is frustrated with the HSE's responses and the lack of records located in this case. I also accept that the length of time taken to process his request 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, date-stamped as having been received by the HSE on 3 October 2022, did not issue until 6 December 2022. I also note that its initial decision did not address all parts of his request, and that an internal review decision did not issue until he came to this Office. I would expect the HSE to have regard to its obligations under the FOI Act to issue decisions in a timely fashion in future.

The applicant remains of the view that further records should exist. The HSE's position is that all relevant records have been located and considered for release. While I note the applicant's arguments, all I must consider is whether the HSE has taken reasonable steps to locate records relating to his request. Having regard to all of the circumstances of this case, I am satisfied that the HSE has adequately explained why it concluded that no further records relating to the applicant's request exist or can be located, other than those already released. While it appears that there has been some confusion as to how his complaint was handled, I find that the HSE was justified in refusing to grant access to additional records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be located, after all reasonable steps to ascertain their whereabouts had been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I find that the HSE was justified in refusing access to further records under section 15(1)(a) of the FOI Act.

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