Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-142155-F5H2T2
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URL: http://www.bailii.org/ie/cases/IEIC/2024/142155.html
Cite as: [2024] IEIC 142155
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Whether the HSE was justified in refusing access to further records relating to specific communication between a named physician and the HSE in relation to the applicant's Medical Council complaint on the basis that these records do not exist or cannot be found
5 June 2024
In a request dated 3 January 2023 the applicant sought access to the following:
(i) All information regarding communication between a named physician and the HSE and the HSE North Lee Mental Health service in relation to the applicant, and in particular the physician requesting that the applicant's medical file be scanned to him in London;
(ii) Any other communication between the physician and the HSE Mental Health Service regarding the applicant or his Medical Council complaint
No original decision issued in the matter. Following the applicant's request for an internal review, an internal review decision issued on 12 May 2023. This decision identified 64 pages of records as falling within the scope of the applicant's request and released them in full to the applicant. This letter also erroneously provided for an opportunity for the applicant to request an internal review of this decision. Therefore, an amended internal review decision issued to the applicant on 23 May 2023 providing for an appeal to this Office.
On 7 September 2023 the applicant appealed the matter to this Office. In the applicant's appeal, and in further correspondence with this Office, the applicant has highlighted a number of records which he believes should exist but which have not been identified as part of his request.
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 applicant's comments in his application for review 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.
This review is concerned solely with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relevant to the applicant's request, other than those already released, on the ground that no further relevant records exist or can be found.
Searches - section 15(1)(a)
In his application to this Office, the applicant has argued that further records exist relevant to his request which have not been identified and as such the provisions of section 15(1)(a) are of relevance.
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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the course of the review, the HSE provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.
I also put questions to the HSE with regard to certain specific matters raised by the applicant in his application for review. With regard to the applicant's query regarding the scope of his request, namely that he had not limited the scope of his request to records as only held by North Lee Mental Health Service (NLMHS), the HSE said that the applicant is a service user within the North Lee Mental Health Services multi-disciplinary team sector. It further said that this request relates to records created by and concerning an employee who at that time, was working as an NCHD in the City North West Community Team of the NLMHS in Cork City as part of a psychiatry rotational scheme. It further said that this role involves close working within the community multi-disciplinary team of NLMHS. It therefore said, that it would not be fair or reasonable to expand the search for records beyond those already conducted within NLMHS. In addition, the HSE said that a search that is widened without a clear rationale, risks violating the staff members' right to privacy by informing additional employees that they are the subject of a complaint to their respective professional body. It said that this in turn is likely to affect how they are viewed by their colleagues and may have professional implications.
The HSE also referred to the requirement that FOI bodies to carry out reasonable searches in an effort to locate requested records. It said that while the Act is silent on the definition of 'reasonable', this term is commonly used in legal contexts to represent the fairness or rationality of a particular action. It said that although the type and level of searches conducted will ultimately depend on the circumstances of each request, it considers that the legislation indicates that such searches should be justified and based on a clear rationale. Based on this it said that it considers that all reasonable searches were carried out for this request.
With regard to the applicant's comments that the reference to Cork University Hospital would clearly encompass South Lee Mental Health Services, the HSE provided me with the following information. It said that this Hospital is an acute large university teaching public hospital managed by the South/Southwest Hospital Group, a part of the HSE whose governance structure differs from the Mental Health Services and therefore would not be within the remit of the Mental Health Services. It also said that there are two Area Administrator posts in Cork Adult Mental Health Services - one is assigned to North Lee/North Cork Mental Health Services and the other is assigned to South Lee Mental Health Services. It added that in this instance due to a short-term geographical relocation of the applicant to a South Lee address, the Area Administrator for this sector was consulted to ensure the request for records covered both areas.
In addition, in correspondence with this Office the applicant said that it was his understanding that the physician named in his request was in contact with another named official within the HSE and therefore records should have been identified relating to such correspondence. I sought further information in relation to this and in response the HSE provided me with the following information. It said that official named by the applicant, in his capacity as the South Lee Area Administrator, was, during the course of the internal review, asked to submit any relevant records that fall within the scope of this request. It said that no records were identified by this official. The HSE further indicated that, in addition, this official undertook a further full and extensive search of all records electronic and otherwise and has no further documents apart from those already submitted. It said that the official searched under both general and narrowed parameters and has included all inbox items in addition to 'Archive e-mails' including subfolders specifically under 'Medical'. It said that the official had specifically searched all e-mails from the period June 2021-present. The HSE provided with the search words which were used and I have already supplied these to the applicant. The HSE further indicated that the official also searched all folders and sub-folders held electronically and confirmed no other records exist within his electronic devices.
The applicant also raised specific questions with regard to correspondence between the named physician and the Medical Council. Following queries in relation to this, the HSE have provided me with the following information. It said that it is probable that the physician engaged with the Medical Council directly in response to the applicant's complaint. It further said that the physician left employment with the HSE for a period of time, therefore, it is very likely that records exist relating to correspondence between the physician and the Medical Council which are not in the possession of the HSE. The HSE further said that it considers that any such records do not fall within the scope of this request as any interactions between the physician and the Medical Council are considered to be a private matter.
The applicant also contends that records should exist relating to a request from the physician for the applicant's file to be sent to him in London for review. When I sought further information in relation to this, the HSE said the following. It said that the Clinical Director has confirmed that the NLMHS declined the physician's request to have the file scanned to him. The HSE said that the Clinical Director has no further records to disclose and has responded accordingly to the records request which was sent to her last year. The HSE further indicated that the Clinical Director confirmed in early 2023 that the service declined the physician's request for the file to be scanned but no record of this conversation has been disclosed (if it even exists).
In addition, the HSE has provided me with the following information regarding the de-registration of email accounts. It said that it is important to note that when the physician left the service his email account was automatically deregistered in accordance with the HSE policy which is outlined below. By way of background it said that the HSE has an 'Access Control Policy' which is available at the following link:
https://assets.hse.ie/media/documents/ncr/access-control-policy.pdf . It said that as soon as a user leaves the employment of the HSE all his/her information systems and network access accounts must be revoked immediately. It said that line managers must request the deletion of a user's access accounts as soon as they have been informed by the user that they are leaving the employment of the HSE. It said that the requests must be made in writing using the'HSE Suspend/Remove Access Request Form Health Service Executive Access Control Policy Version 3.0 10 February 2013' ( http://hsenet.hse.ie/HSE_Central/Commercial_and_Support_Services/ICT/Policies_and_Procedure s/Forms/Suspend_Remove_Access_Request_Form.pdf ) and forwarded to the ICT Directorate and the appropriate system administrator(s). In such cases the request should be clearly marked 'Delete User Account' and made in advance of the user's last day. It also said that HSE System administrators and network administrators must revoke user accounts at the requested date and time after the receipt of a properly completed HSE Suspend/Remove Access Request Form ( http://hsenet.hse.ie/HSE_Central/Commercial_and_Support_Services/ICT/Polici es_and_Procedures/Forms/Suspend_Remove_Access_Request_Form.pdf ).
By way of further background information, the HSE, based on information from its ICT Unit, provided the following information:
● Emails on Exchange server are backed up every night, saved to disc in house for three months then deleted
● Once a month, a "full back up" is done, it is copied to tape and sent to a third party off-site for 7 years (Individual mailbox may be spread across 2 tapes)
● In order to conduct a search of a tape the following is required: server name, email account, from/to dates, and subject
● Searches are not conducted on-site by the HSE
● A specialist third party external company would have to be engaged to search relevant identified tape(s), extract information, effectively create a new mailbox, then carry out search for personal data
● Specialist third party external company would provide a quote and a Purchase Order (PO) would be raised by the HSE
● The cost to search one tape is approximately €3000
● There is no guarantee that a search would be successful
● The purpose of creating back-up tapes is for use in the event of a disaster, i.e. fire/flood, etc., or cyber-attack where the HSE may need to recover IT systems.
● The tapes are held off site for added protection.
The HSE said that in light of the above, and due to the fact that the HSE cannot confirm that any data relating to an individual is held on the tapes, it is not possible to search tapes on the system on the off-chance that a name may appear as this would be seen to be excessive and have a disproportionate effect on the resources of the HSE.
In addition, with regard to the applicant's query as to why there were no records provided from the Area Administrator, Acting Area Administrator, Clinical Director or Covering Clinical Director the HSE said the following. It said that thorough searches have been conducted with personnel being requested to provide records relevant to the scope of the specific request with particular emphasis on the HSE Personnel specifically listed by the applicant.
Beyond the above information addressing specific issues raised by the applicant, the HSE also provided more general information as follows. With regard to the searches that have been carried out, it said that thorough searches have been conducted with personnel being requested to provide records relevant to the scope of the applicant's specific request with particular emphasis on the HSE Personnel specifically listed by the applicant. The HSE also specifically said that unfortunately verbal requests or responses without written follow up are unable to be verified.
The HSE further said that it considers that the record(s) sought by the applicant may have existed at some stage, but do not currently exist. It said that this position directly relates to the fact that the physician left his employment with the HSE and the applicant's request is concerned mainly with an allegation that the physician requested access to the applicant's file when he was no longer working with the HSE. It said that, as outlined above, when an employee leaves the HSE, their email account is de-registered, therefore, on the physician's return to employment with the HSE, his de-registered/de-activated account would not contain historical emails.
Finally, in relation to record management practices generally, the HSE provided the following information. It said the records the applicant requested are made up of internal administrative communications which would largely encompass emails on the personnel's HSE email account. It said the HSE ICT unit have confirmed that HSE systems that are hosted nationally are backed up electronically and external tape complying with the eHealth Backup policy www.hse.ie/eng/services/publications/pp/ict/national-backupand-restore-policy.pdf . It said that while the HSE Record Management Policy is adhered to, however, there are a number of factors that can negatively impact record management practices. e.g.
● Unintentional non adherence to standardised HSE record management practices;
● Changes in personnel;
● Deletion/misfiling of emails after a three year period due to lack of digital storage space; and
● Ramifications of the cyberattack on HSE in 2020.
In sum, it is the HSE's position that all records relevant to the applicant's request have been identified.
Following receipt of the HSE's submissions as set out above, I forwarded details of the searches undertaken to the applicant. In light of the above clarifications, I informed the applicant of my view that the HSE had, at that stage taken all reasonable steps to ascertain the whereabouts of relevant records. I invited the applicant to make further submissions if he remained of the view that further relevant records should exist.
In response, the applicant made further submissions as follows. At the outset, he said that the matter at hand is particularly serious as he believes that the HSE gave private possession of his medical file to the named physician which he considers to be a serious data breach and a criminal offence. In addition, the applicant supplied this Office with an email sent from an official in the FOI Unit to the physician dated Thursday 23 February 2023 wherein the official sought information relevant to the applicant's current request from the physician. The applicant has also provided this Office with a response from the physician to this email, dated Monday 27 February 2023 wherein the physician stated that it was his understanding that the South Lee Area Administrator, as referred to above, was processing this request. However, the applicant said that at no point has the HSE indicated that the physician's own email account was searched for records relevant to this request. The applicant also specifically asked if the physician ever responded in substance to the request dated Thursday 23 February 2023.
Finally, the applicant made a number of comments in relation to the HSE's contention that the Clinical Director has confirmed that he declined the physician's request to have the file scanned to him. The applicant referred to correspondence which he received following an FOI request to the Medical Council which he says purports to show that what he refers to as 'frantic back and forth communication' stopped following an email dated Monday 20 June 2022 at 16:33 from an unknown source but which the applicant contends came from the physician to a HSE employee. The applicant said that following this the physician submitted his response to the Medical Council on 24 June 2022. He further said that he believes that his medical file was scanned to the physician in London to facilitate this response.
I provided details of the applicant's comments to the HSE. In response the HSE provided me with further information as follows. At the outset the HSE reiterated its comments to the effect that the Clinical Director has confirmed that the Service did not grant the physician's request to have the applicant's file scanned to him. The HSE further said that the physician has confirmed that although he requested that the file be scanned to him and he subsequently sought access to review the file in person because the file had not been so provided, he said that he did not review the file at that point. The HSE said that the physician said that as he did not receive a favourable response to his request for access, he proceeded to draft his response to the ancillary complaint to the Medical Council based on his original response. The HSE further reiterated that all staff relevant to the scope of the applicant's request have already been asked to forward any relevant records and all reasonable steps have been taken to retrieve or ascertain records that may or may not exist or previously existed.
With regard to the applicant's comment in relation to the email dated Thursday 23 February 2023 from an official in the FOI Unit, the HSE provided the following information. It said that the physician in question left the employment of the HSE for a period of time between July 2021 and July 2022 and in line with the procedures outlined above, on his departure his email account was deactivated. The HSE further said that when he recommenced his employment with the HSE he was reallocated his previous email and his account was reactivated. However, as set out above, the HSE said that the reactivated account no longer held historic emails. In addition, the HSE further added that the physician remained on the 'HSE South Domain' until July 2023 when, due to a change in his rotation from the CHO4 Mental Health Services, he was migrated to the 'HSE Domain HealthIrl'. The HSE further indicated that following this migration the physician's HSE South Domain account was fully closed. The HSE also indicated that the physician in question has confirmed that his work mobile phone was replaced on his return to Ireland in 2022 and the new mobile did not load historic emails.
With regard to the applicant's specific request as to whether the physician ever responded in substance to the request dated Thursday 23 February 2023, the HSE confirmed that no further response was received from him other than the initial response referred to by the applicant above. With regard to the applicant's comments as to why correspondence appeared to stop at a certain point, the HSE said it cannot speculate on why such email correspondence ceases, other than to assume this occurred naturally as the response to the Medical Council was submitted and access was no longer required.
In addition, I also note that the applicant submitted further correspondence to this Office on 16 May 2024. The applicant referred to a separate FOI request which he had made to the HSE in which he said that he understood that another HSE employee had been provided with an alternate email address without leaving employment with the HSE.
As set out above, it is the HSE's position that all reasonable steps have, at this stage, been taken to ascertain the whereabouts of records coming within the scope of the applicant's requests and that no further relevant records exist or can be found. It is important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, this Office takes the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of records relevant to the applicant's request. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has. It seems to me that a thorough search has been undertaken using appropriate search terms and asking the relevant individuals to look for records. I accept the HSE's position that owing to the temporary departure of the physician from HSE employment along with his transfer to another functional unit within the Service, it is not possible at this juncture for the physician to search for historic emails relevant to the applicant's request. In addition, I do not consider that the applicant's recent comments in which he contends that the HSE provided an alternate email address for another employee to have any material significance in this case.
I accept that this is disappointing for the applicant. However, it is important to recall that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location of or (as in this case) existence of records. It is also important to recall that, as set out above, 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.
Therefore, based on the explanations provided, I am satisfied that, on balance, the HSE has provided a sufficiently detailed and cogent explanation of the relevant searches carried out, and of its storage and retention practices and policies, the account for the lack of records which the applicant asserts should exist. Furthermore, I consider that, in relation to the applicant's FOI request generally, the HSE has provided a reasonable and logical explanation for the lack of additional records, and has provided a clear and adequately detailed explanation of the nature of its systems and processes that accounts for the non-existence of additional records. Therefore, given the requirements of the test elaborated above, I consider that the HSE has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish the non-existence of the records sought were reasonable.
For these reasons, I find that the HSE was justified in refusing to release any further records on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Accordingly, I find that, the HSE was justified in relying on section 15(1)(a) of the FOI Act to refuse access to any additional records relevant to the applicant's request on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision.
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.
Mary Connery
Investigator