Decision
Ms P and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-143448-K4C0D0
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URL: http://www.bailii.org/ie/cases/IEIC/2024/143448.html
Cite as: [2024] IEIC 143448
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Whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing to release stenography records created in the course of a Systems Analysis Review (SAR) into her daughter's death on the grounds that the records do not exist or cannot be found after all reasonable searches have been carried out
17 May 2024
This case has its background in a previous review by this Office, case OIC-132780-G8S6Y0, in which I was not satisfied that the HSE had taken all reasonable steps to locate stenographer records sought by the applicant. The records sought are transcripts of interviews taken during a Systems Analysis Review (SAR) which examined the circumstances surrounding the death of the applicant's daughter following surgery at a HSE hospital. I annulled the part of the HSE's decision that related to the stenographer records, and directed the HSE to undertake a fresh consideration of the matter.
The HSE issued a fresh decision to the applicant on 29 September 2023, refusing the request under section 15(1)(a). It described further steps undertaken to locate the stenographer records but said that they could not be found. It said that it had written to the chair of the review team who conducted the SAR but had not yet received a response. The applicant sought an internal review on the same day. She queried why the chair had not replied, and said that she hoped that a reply would be received in time for the internal review decision. She said that it was puzzling to think where the records could possibly be, and suggested that the person who took the stenography records might know. She named some individuals who she thought might be able to assist, a member of the review team and the commissioners of the review. She also referred to the HSE's Incident Management Framework (IMF) which provides that documents created in the course of a review should be retained for seven years.
On 20 October 2023, the HSE issued its internal review decision, affirming the decision to refuse the request under section 15(1)(a), stating that the HSE did not hold any records relevant to the request. It said that the chair of the review team had confirmed that the stenographer records had "long since been securely and confidentially destroyed". On 30 October 2023, the applicant applied to this Office for a review of the HSE's decision.
In the course of the review, the HSE provided details of the searches conducted. The investigator provided these details to the applicant in order for her to comment on them, which she did. Furthermore, in the course of the review the HSE located draft transcripts of two interviews held by the review team that were emailed by the stenography company to the review's Case Officer. When asked for its position on these records, the HSE said that it does not consider that it 'holds' these records for the purposes of the FOI Act. Notwithstanding that, it said that they would, in any event, be exempt from release under sections 30(1)(a), 30(1)(b), 35(1) and 37(1) of the FOI Act.
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 and by the applicant, as well as to the findings of the previous review by this Office. I have also had regard to the contents of the records found by the HSE in the course of the review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned only with whether the HSE was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, the applicant's request for copies of the stenographer records taken prior to and during the SAR relating to her daughter's death.
In correspondence with this Office, the applicant raised concerns about the potential withholding or destruction of evidence, and the possibility of there being a criminal aspect to her daughter's case. She said that the HSE had attempted to lead this Office to believe that the HSE and the review team established to carry out the SAR are entirely separate entities. She also pointed out that one of the members of the review team was group lead for quality and safety for the relevant hospital group.
It is important to note that this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
In relation to the issue that the applicant has raised about the relationship between the HSE and the review team, to the extent that this is relevant to the FOI Act, I addressed this in the previous decision referenced above. In that decision, I did not accept preliminary arguments made by the HSE that it did not 'hold' certain records for the purposes of the FOI Act because they were created for use only by the review team. Any further concerns about the independence of the review team fall entirely outside the remit of this Office.
Section 15(1)(a)
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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, 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.
As noted in the previous decision by this Office, the IMF provides that all commissioned reviews require the establishment and maintenance of systems for the management of documentation and information relevant to, or created as part of, the review. It provides that the recommended timescale for retention of documentation and information is seven years, and that when a review is completed, records should be returned to the commissioner of the review. In these circumstances, I accepted that the HSE had carried out reasonable searches in the locations that it would expect to find such records had they been returned to the commissioner of the SAR in accordance with the provisions of the IMF.
However, I noted that this raised the question as to where the records might be held if, as appeared likely, the records were not returned to the commissioner following the review. I said that it was not apparent that the HSE had made any further efforts to establish what steps the review team took to ensure compliance with the IMF provisions in relation to its retention and return of relevant records and what might have happened to the stenographer records. I said that such efforts might reasonably have included making relevant enquiries of the Chair and, perhaps, all of the other members of the review team, as to what records were retained and where, and what records were destroyed, if any. In those circumstances, I was not satisfied that the HSE took all reasonable steps to locate the stenographer records sought and remitted the request back to the HSE for a fresh decision.
Submissions from the HSE
The HSE provided this Office with details of the additional searches it said that it undertook to locate the stenographer records, further to that part of the FOI request being remitted by this Office. In summary, its position is that all reasonable steps have been taken to locate the stenographer records and that they cannot be found. I provided the applicant with a summary of the HSE's submissions for comment. 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.
In summary, the HSE said that it contacted the Case Officer attached to the review team who confirmed that she had carried out searches with Hospital ICT, QPS and by contacting the review team. She confirmed that she did not receive a copy of the stenography notes from the chair of the review team, nor any department within UL Hospitals Group. It said that she confirmed that she was not aware that the review team ever handed over the stenography records to the commissioners of the SAR in this case.
In response to a request for more details on the statement from the chair of the review team in relation to "the stenography records have long since been securely and confidentially destroyed", the HSE provided a copy of correspondence from the chair in which he confirmed that in December 2021, a number of medico-legal and other miscellaneous files were, at his request, disposed of by a member of the administrative staff and that the records of the SAR in question were inadvertently included in that collection of documents. He confirmed that these documents were shredded confidentially by the relevant service provider. The chair of the review group also confirmed that at no stage were the records of the review provided to the Hospital.
Similarly, the HSE also said that it has no evidence that the stenography records were ever handed over to the commissioners of the SAR which it acknowledged is not in accordance with the IMF. It said that in order to prevent recurrence of this in future, it has now explicitly incorporated into the precedent terms of reference a statement that records must be returned to the Commissioner of the review, following its conclusion, in line with the IMF.
In the course of responding to a query from the investigator about the engagement of the stenography company and the retention period for records created by stenographers, the HSE found draft transcripts of two interviews held by the review team that were emailed by the stenography company to the Case Officer. The HSE said that these records were not described as stenographer records in the subject of the email nor in the body of the email which is why they were not uncovered in previous searches. It acknowledged that it was unsatisfactory that these records have only come to light at this stage of the process. In relation to these records, the HSE said that they appeared to be draft stenography records being shared (and protected by password) between the stenographer and the persons being interviewed in order to fact check certain terminology. It said that it was the Case Officer's view that they were sent to her in error, as drafts were not received in relation to other individuals.
When asked for its position on these records, the HSE said that it does not consider that it 'holds' these records for the purposes of the FOI Act. Notwithstanding that, it said that they would, in any event, be exempt from release under sections 30(1)(a), 30(1)(b), 35(1) and 37(1) of the FOI Act.
Comments from the applicant
The applicant provided detailed comments in response to the summary of the further searches the HSE said that it carried out, provided to her by the investigator. While I will not repeat all the comments in full here, I confirm that I have regard to them.
The applicant disputed that the chair of the review team was the only member of the team with copies of the stenographer records. She said that she has been seeking these records since 2018 and is of the view that the HSE does not want her or her family to be aware of the details contained within the records. She queried who the stenographer was. She described the claim that the records were inadvertently destroyed as heart wrenching and very insulting. She provided a copy of a letter sent by her solicitor to the chief executive of the hospital in February 2020 in which copies of the stenographer records were requested.
The applicant emphasised that the Group Lead for Quality and Safety in the hospital group, who was also a member of the review team, should have been asked to search for records. She referred to page 10 the SAR report which states that all interviews were conducted in person by the review team, and that they were recorded by a stenographer. She said that both the chair of the review group and the Group Lead for Quality and Safety were aware that she had sought these records on a number of occasions since 2018 and yet she was never informed that the records were allegedly destroyed in 2021.
Analysis
I have carefully considered the submissions as summarised above. It is important to clarify that the Case Officer referred to by the HSE and the Group Lead for Quality and Safety referred to by the applicant, are one and the same person.
In relation to the stenography records that were found in the Case Officer's email account in the course of this review, while it is clearly unsatisfactory that they only came to light at this late stage, I accept the HSE's explanation of why this was the case, and that they appear to have been sent to the Case Officer in error. I do not consider that this is indicative of the likelihood of other relevant records also being held in this email account, and I accept that, at this point, reasonable searches of the Case Officer's records have been conducted. In respect of these three records found (the two draft transcripts and an email with the password), it seems that the only reasonable option available to me is to direct the HSE to make a first instance decision on these records, in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the HSE's decision. I appreciate and regret that this will further prolong the process. However, for this Office to make a determination on these records at this point, without an original decision and internal review decision, would be contrary to fair procedures and what is required by the FOI Act. It is most regrettable that it is only at this stage of an already long process that the applicant will receive a formal decision from the HSE on the substantive question of whether or not it considers the stenography records that it has found to be exempt or releasable under FOI, rather than an administrative refusal on the grounds that the records cannot be found.
The question remaining therefore, is whether the HSE is justified under section 15(1)(a) in refusing access to any further relevant records. In the previous review by this Office, there remained uncertainty over copies of the records potentially held by the chair of the SAR. The chair has since confirmed to the HSE that the records that he had retained relating to the review were shredded in 2021, albeit inadvertently. This is extremely regrettable and I acknowledge the further upset that this has caused for the applicant. While the decision under review in this case relates to an FOI request made in March 2022, it is clear that the applicant has been seeking access to these records, albeit not always through the mechanism of FOI, since at least February 2020. It is not at all clear to me why it has taken until 2024 for the HSE to confirm that the records were shredded in January 2021. It seems to me that in this case, the HSE's approach to records management, particularly records of such sensitivity, has fallen very far short of the standards that would be expected and indeed it has acknowledged that its own procedures were not followed in terms of the handing over and retention of the relevant records. I note that it has made an amendment to its precedent terms of reference in order to prevent a recurrence of this in the future.
The applicant queried whether the person who created the records would know where they are i.e the stenography company who were engaged by the HSE to create the transcripts of the interviews and to provide copies of them to the review team. Under section 11(9) of the Act, a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of the Act, give the record to the FOI body. Accordingly, the question for consideration is whether the taking of reasonable steps in this case would include the HSE seeking to obtain additional copies of the records sought from the relevant stenographer if they still exist. In my view, it would not.
The purpose of section 11(9), in my view, is to ensure that records that are not held by an FOI body but are instead held by a service provider on its behalf are not excluded from the scope of the FOI Act. The records sought in this case, namely the transcripts of a number of interviews with individuals who took part in the Systems Analysis Review, are not records that can reasonably be described as being held by the stenographer on behalf of the HSE. The records in question were already previously given to the HSE following their creation. The right of access afforded by the FOI Act applies to those records that were given to the HSE. It is not reasonable, in my view, to expect the HSE to seek to obtain from the stenographer additional copies of records it has already previously been given almost six years ago. I consider that requiring it to do so goes beyond the taking of reasonable steps as envisaged by section 15(1)(a).
The FOI Act provides for a potential right of access to records that actually are held by FOI bodies, and not what should be held by them. If the record sought is not held by the FOI body, for whatever reason, then no right of access exists. Having considered all of the above, and notwithstanding the poor approach to records management shown by the HSE, I am satisfied that, at this stage, the HSE has carried out reasonable searches for the stenographer records and that they no longer exist or cannot be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. I affirm the HSE's decision, under section 15(1)(a) that no further stenographer records exist or can be found. I direct it to make a decision on the records that it located in the course of this review.
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.
Stephen Rafferty, Senior Investigator