Whether CHI was justified, under section 15(1)(a) of the FOI Act, in refusing access to medical records sought by the applicant on the basis that the records no longer exist or cannot be found

21 December 2023

Background

In a request dated 17 May 2023, the applicant sought access to her medical records dating from 1966 when she was a patient in Temple Street Children's Hospital. In a decision dated 31 May 2023, CHI released a copy of the applicant's index card and refused the applicant's request under section 15(1)(a) of the FOI Act as it could not locate her healthcare record. CHI said that its records indicate that a search was conducted in November 2009 following a request by the applicant for her records at that time, and that it was unable to locate the records at that time. CHI stated that its Healthcare Records Team conducted another search and located the applicant's index card, but cannot locate the corresponding healthcare record.

On 14 June 2023, the applicant requested an internal review of CHI's decision, noting that no information was located in 2009 and saying that the location of her index card suggests there may be other information available. The applicant also asked if CHI have any details about the ward mentioned on the index card. In a decision dated 23 June 2023 CHI affirmed its original decision. It said that the applicant's index card was located in November 2009 and it apologised that it was not forwarded to her at the time. On 6 July 2023, the applicant applied to this Office for a review of CHI's decision. The applicant said that further records should exist. She stated that the information she asked for about the ward was not addressed by CHI.

During the course of this review, the Investigating Officer requested submissions from CHI about the searches it carried out to locate the applicant's healthcare record. While CHI initially provided some details about those searches, it did not fully address the Investigating Officer's enquiries in a timely manner. Accordingly, this Office issued a formal notification under section 45 of the Act requiring CHI to provide more extensive details of its searches.

The Investigating Office provided the applicant with details of CHI's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records, other than her index card, could be found. The Investigating Officer invited the applicant to make submissions on the matter. In response, the applicant said that she was disappointed that no information has been found and that she does not accept that CHI has done all it can to locate her records.

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 correspondence referred to above, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether CHI was justified, under section 15(1)(a) of the FOI Act, in refusing access to the applicant's healthcare records on the basis that the records do not exist or cannot be found.

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" 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, CHI provided this Office with details of the searches it undertook and its reasons for concluding that no further records exist or can be found, details of which were provided to the applicant.

Essentially, CHI's position is that medical records of the applicant would have been stored in a microfilmed format together with all records from 1963 onwards. In its submissions to this Office, CHI said that healthcare records for children whose date of birth fell before 1963 were destroyed and were not microfilmed, with the exception of metabolic or other patients whose condition meant they would continue to attend treatment into adulthood. It said healthcare records for children born since 1963 were microfilmed and the index held on a register in the microfilming area. CHI said that the original healthcare records were destroyed after they were microfilmed.

CHI said a request was sent to the Micro-Film Department to conduct a search for the applicant's records under her name and date of birth. It said that the Micro-Film Department located a hospital number on an index card but were unable to locate a healthcare record for the applicant on the microfilm roll. CHI said the index card contained the name, address, transfer and discharge and date of third admission and discharge. CHI noted that a copy of the index card was sent to the applicant.

CHI stated that further searches were carried out in microfilm tapes with similar references numbers to the applicant's number and no records relevant to the applicant's request were located. It stated that the person with the most expert knowledge carried out the search and could not locate any further records. CHI said that it cannot use keywords to locate records on a microfilm. It said, "the records are scanned to the microfilm and you are required to scroll through the disc to locate the record".

In her request for internal review, the applicant noted the name St. Anthony's on the index card she received from CHI. She asked to have any details CHI may have on her admission to St. Anthony's. In submissions to this, CHI said that St. Anthony's was a separate hospital, that was located adjacent to St. Vincent's Hospital. CHI described St. Anthony's Hospital as a type of residential unit for sick children which was closed down in 1969. CHI said that the applicant was transferred from there to Temple Street Hospital. This Office asked CHI about the applicant's records from St. Anthony's Hospital. CHI explained that when the applicant transferred to Temple Street Hospital, her records would have also transferred to Temple Street. CHI said that those records would have been microfilmed together with the rest of the applicant's medical records. In summary, it is CHI's position that any of the applicant's medical records that it held would have been put on microfilm and that it has been unable locate those records after having searched through its microfilm records.

On the matter of whether CHI holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question I must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. This Office does 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 or cannot be found. We take the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.

Having regard to CHI's submissions about its efforts to locate the records at issue in this case, and in the absence of any evidence to suggest that further searches should have been undertaken, I am satisfied that CHI has undertaken all reasonable steps to locate the applicant's healthcare records. While I can understand that the applicant will be disappointed with my decision, I find that CHI 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 CHI's decision to refuse access to the applicant's healthcare records on the basis that these records no longer exist or cannot 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

Richard Crowley
Investigator