Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant on the ground that no further records exist or can be found

10 November 2023

Background

In a request dated 13 February 2023, the applicant made a request to Tipperary University Hospital, a HSE hospital, seeking access to "all of my records from birth"¦. along with any other information which was tracking me health and or otherwise"ť. On 24 February 2023, the HSE issued its original decision granting the applicant's request for records. On 5 May 2023, the applicant made a request for an internal review on the basis that further records ought to exist. On 22 May 2023, the HSE issued an internal review decision affirming its original decision. On 26 May 2023, the applicant applied to this Office for review of the HSE's decision.

On 13 July 2023, this Office's Investigating Officer contacted the applicant by email asking for details of what additional records they are seeking from the hospital. In response, the applicant said that they need their personal records for legal reasons. While the applicant also referred to the World Health Organisation (WHO) in their reply, no details were provided about additional records that may be held by the hospital.

During the course of this review, the Investigating Officer provided the applicant with details of the HSE's submissions wherein it outlined the searches it had carried out to locate the records sought by the applicant and its reasons for concluding that additional records relating to the applicant's request do not exist or cannot be found. The applicant was given the opportunity to comment, which the applicant duly did. The applicant maintains that further records exist.

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 in their application for review, the additional correspondence from the applicant and to the submissions made by the HSE in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While it is the HSE's position that it has released the records which the applicant requested, the applicant maintains that further records relating to their request exist. As a result, this review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to additional records held by Tipperary University Hospital relating to the applicant's request.

Preliminary Matter

In their correspondence with this Office and HSE the applicant refers to various organisations, not all of which are subject to the FOI Act, which they believe may hold personal records relating to them. In regard to records held by FOI bodies, it is important to note that requesters must make separate FOI requests in writing to each FOI body that holds the records they are looking for. While FOI bodies are required to assist requesters, section 12(1)(b) of the Act requires the person making the request to provide sufficient particulars in relation to the information they are seeking to enable the record to be identified by the taking of reasonable steps by the relevant FOI body.

It is important to note too that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act."‹"‹

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 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"ť 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.

As I have outlined above, the HSE provided this Office with details of the searches it said it undertook in an effort to locate further relevant records, and its reasons for concluding that no further records exist. The Investigating Officer provided the applicant with details 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.

The HSE stated that searches were performed according to the name, address, date of birth and hospital number for the applicant. It stated that the patient management systems show all attendance since birth, and that all attendances were checked on healthcare records and emergency department records for the request received by the HSE on 13 February 2023. It stated that no individuals were consulted or needed to be contacted in a search for records as all medical records are held in the healthcare record. It stated that the FOI researchers checks all attendances which are available on the hospital's patient management systems, retrieves and checks all charts covering the dates requested. It stated that the FOI decision maker checks this all again in making their decision. The HSE stated that the Hospital holds no records created by the WHO in relation to the applicant or any patient attending the Hospital. The HSE stated that the WHO is a separate entity and no personal information is shared between the HSE and the WHO.

In submissions to this Office, the HSE informed the Investigating Officer that during its communications with the applicant by phone and by email, its FOI Officer had suggested potential records and locations of records the applicant may be seeking. This included suggestions to the applicant that records may be held at a separate hospital. The HSE stated that the applicant did not request or identify any records relevant to them held in any other hospital. The HSE stated that in correspondence with the applicant it made multiple attempts to ascertain what records the applicant is looking for, and explained to the applicant that the HSE would not hold records for other services such as TUSLA and An Garda Síochána. Additionally, the HSE stated in its internal review decision that records relating to primary care and TUSLA would need to be requested from the Freedom of Information Office at the relevant area attended by the applicant. Should the applicant wish to access any such records, it is open to them to make a new FOI request to the relevant FOI body.

As noted above, the applicant has made various references to other organisations, such as the WHO and An Garda Síochána and referred to various types of information they are seeking. The role of this Office in this case is to review the decision of the HSE in relation to records held by the hospital in question that come within the scope of the applicant's original request. While it's clear from the applicant's submissions to this Office that they do not accept the HSE's position, they have not provided any substantive argument as to why further searches should be carried out. Neither did the applicant provide any evidence in support of their view that additional recordsheld by the hospitalshould exist.

It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. 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 the body has taken all reasonable steps to locate the record(s) sought.

In the absence of evidence to suggest that further searches should have been undertaken, it seems to me that the HSE has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records can be found. In the circumstances of this case, I find that the HSE was justified in refusing access to further records relating to the applicant's request under section 15(1)(a) of the FOI Act, on the ground that no further 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, under section 15(1)(a) of the FOI Act, further records relating to the applicant's request that are held by the hospital on the basis that no additional 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.

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Richard Crowley

Investigator