Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant-�s late father-�s medical records on the ground that no records exist or can be found after all reasonable steps have been taken to locate them

6 September 2023

Background

On 18 November 2022, the applicant sought access to the medical records of her deceased father for the period February 1989 to March 1989 while he was a patient in Limerick Regional Hospital.

On 14 December 2023, the HSE issued a decision refusing the applicant-�s request under section 15(1)(a) of the FOI Act 2014. The HSE stated that its current system did not contain records in relation to 1989, and that a search carried out by its third party storage company which holds the HSE-�s historic records located no relevant records. On 29 December 2022, the applicant applied for an internal review of the HSE-�s decision. On 23 March 2023, the HSE issued an internal review decision affirming its original decision. It stated that the applicant, in correspondence with the HSE, provided two dates of birth for her father. The HSE said that it searched for records using both dates of birth provided, but that no relevant records were found. On 17 May 2023, the applicant applied to this Office for a review of the HSE-�s decision.

During the course of this review, the HSE provided submissions to this Office in support of its decision to refuse the applicant-�s request. The Investigating Officer provided the applicant with details of these submissions, including the HSE-�s reasons for concluding that the relevant records do not exist. The applicant was invited to made further submissions. While she indicated by telephone that she was not satisfied with the HSE-�s position, she has not made any further substantive submissions to this Office.

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. I have also had regard to the applicant-�s comments in her application for review and subsequent correspondence with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE-�s position is that no records relevant to the applicant-�s request exist or can be found.

Accordingly, the scope of this review is concerned solely with whether the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for her late father-�s medical records on the basis that the records do not exist or cannot be found after all reasonable searches have been undertaken.

Analysis and Findings

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 cases such as this is to review the decision of the FOI body and to decide whether the 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 the 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 I have outlined above, the HSE provided this Office with details of the searches the Hospital undertook in an effort to locate records relevant to the applicant-�s request and of its reasons for concluding that no relevant records exist or can be found. It also provided copies of the storage, archiving, and records retention policies. 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 HSE stated that electronic storage systems were not used in 1989. It said that given the content and the historic nature of the records sought, they would be held in hardcopy format if they existed. The HSE stated that the Hospital has no evidence that the records had or may have been destroyed other than not being able to locate them. Additionally, it stated that it is likely that the records did exist at some point as its patient information system indicates a patient identification number for the deceased, and that it was highly likely that records were generated if the patient attended from February to March 1989.

The HSE stated that initially it was given the incorrect date of birth for the applicant-�s late father, but that, having found no records of the deceased, it sought clarification of the details and it was then provided with the correct information.

The HSE stated that the Hospital does not have the capacity to store records from 33 years ago onsite and that accordingly, records are stored in an offsite facility managed by a third party. I understand that it uses a number of storage companies to store different types of records. The HSE said that the third party storage company who should have had the records if they existed carried out searches but located no records relating to the applicant-�s request. The HSE said at that point, it decided to extend the search to all of the storage companies used. It said that the record storage companies searched for records relevant to the applicant-�s request using keywords such as the patient-�s name, initials, date of birth, address and patient identification number. It said that the companies additionally conducted searches using derivatives of the deceased-�s name, but that no records relating to the applicant-�s father were located.

The HSE said that third party storage company 6pm has no record of ever receiving the applicant-�s late father-�s chart. The HSE stated that 6PM microfilmed, scanned or stored copies of hardcopy patient files from 1984 onwards. It stated that 6PM created a database index of all records when it microfilmed the charts of deceased patients, and that it also indexed hardcopy files. The HSE stated that 6PM-�s databases did not capture the date of death, and as a result, it has no way of knowing if it holds files relating to patients who died during the relevant time period. It stated that the third party storage company DSM located no records relating to the applicant-�s deceased father. The HSE also said that the third party storage company Iron Mountain stated that it does not hold records for the relevant time period.

The HSE stated that the Hospital-�s Medical Records Department undertook a further search by the healthcare records manager using the relevant name, date of birth, and address on its current Inpatient Management System and on the previous system known as Patient Administration System. It said that no records of the applicant-�s late father having been an inpatient in the Hospital were found.

As noted above, the Investigating Officer contacted the applicant and provided her with details of HSE-�s submissions wherein it outlined its reasons for concluding that additional records relating to his request do not exist or cannot be found. The Investigating Officer invited her to make further submissions on the matter. As also noted above, the applicant did not make any substantive submissions on the applicability of section 15(1)(a).

It is important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the records sought.

It is regrettable that the HSE was unable to locate the applicant-�s late father-�s medical records. However, having regard to the HSE-�s submissions, which outline the searches that were undertaken to locate relevant records and in the absence of any evidence that further searches are warranted, I am satisfied that the HSE has taken all reasonable steps to locate the records sought.

Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant-�s late father-�s medical records on the ground that no such records exist or can 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 to the 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