Decision
Mr. A and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147058-F8G0S0
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URL: http://www.bailii.org/ie/cases/IEIC/2024/147058.html
Cite as: [2024] IEIC 147058
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Whether the HSE was justified in refusing access to the applicant's clinical file under section 15(1)(i) of the FOI Act on the ground that the records sought have previously been released to him
4 December 2024
By way of background, the applicant has made a number of previous FOI requests to the HSE for various records relating to his healthcare treatment and engagement with the HSE. In an internal review decision on one such request, the HSE explained the following:
"FOI file management process advises that, in the first instance, original records which are the subject matter, or the scope of the request, are photocopied and the original file returned to its natural location. The FOI management process then advises that the photocopied version of the records is numbered accordingly. However, having reviewed the original patient files for the purpose of this review, it would appear that at some point a Decision Maker/FOI officer inadvertently numbered the original file as opposed to the photocopied file for a request. Unfortunately, this error would be evident in any future requests as the original numbering sequence would be evident on the record and on any record that may be photocopied in the future".
On 28 December 2023, the applicant submitted a fresh request to view and inspect in person all the original clinical files that were affected by the numbering error referenced in that internal review decision and the FOI photocopied versions of the affected clinical files.
The HSE did not issue a decision on the request within the statutory timeframe. On 29 January 2024, the applicant sought an internal review of the HSE's deemed refusal of his request. The HSE also failed to issue an internal review decision within the required timeframe. On 21 February 2024, the applicant applied to this Office for a review of the HSE's deemed refusal of his request. This Office directed the HSE to issue an effective position, outlining its decision. On 4 March 2024, the HSE did so. It refused the applicant's request under section 15(1)(i) of the FOI Act which allows for the refusal of a request where the records sought have already been released to the requester. On the same day, the applicant applied to this Office for the review of the HSE's decision.
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 both parties. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the HSE stated that 1,340 original records were inadvertently numbered. In submissions to this Office, which I will reference below, the applicant sought to amend his original request. He said that he was rescinding the second part of his request, to view and inspect photocopied versions of the affected clinical files. He said that he was amending the first part of the request to view and inspect, in person, the entirety of his original clinical file. He said that he was revising the request as he initially assumed that the HSE made the error across all files. Upon being notified that the error affected 1,340 records, he said that he was now unsure if that comprised all his files or not. He noted that he had sought clarity in respect of the amount of files affected but the HSE did not respond. While the scope of an FOI request can be narrowed at internal review stage or in the course of a review by this Office, it cannot be broadened beyond what was originally sought. While I note that the applicant's attempt to revise the scope followed confirmation from the HSE in respect of the number of affected records at issue, the fact remains that I cannot broaden the scope at this stage.
Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse the applicant's request to inspect the erroneously numbered records in his clinical file on the basis of section 15(1)(i) of the FOI Act.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. Firstly, I must note that the HSE's processing of the applicant's request fell well short of the required and expected standards and was wholly unsatisfactory. It failed to issue an original decision or an internal review decision. Moreover, the effective position which the HSE subsequently issued merely stated the provision of the Act being relied upon in support of refusal. Its failure to provide any substantive decision to the applicant necessitated the submission of an application for review to this Office. In its submission to this Office, the HSE was asked to explain why the requirements of the FOI Act were not met in this case. In response, it said that "owing to the volume of requests submitted by the applicant, the [specified] decision maker didn't have the capacity to process this FOI within the legislated time frame". Section 14 of the FOI Act provides that an FOI body can extend the four week-period for processing a request in certain circumstances, including where it considers that the number of other FOI requests relating to the records to which the specified request relates that have been made to the FOI body concerned before the specified request was made to it and in relation to which a decision has not been made is such that compliance with the four-week processing period is not reasonably possible. The HSE did not seek to extend the timeframe under that provision.
While I fully accept that the HSE has to make difficult decisions in terms of the allocation of what are often scarce resources, as this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other such function. The manner in which the applicant's request was processed serves to undermine the entire FOI process and is unacceptable. I expect the HSE to have regard to my comments and to ensure compliance with the relevant statutory requirements set out in the Act. I would also remind the HSE that section 13 of the FOI Act requires public bodies to give reasons for refusing access to information. It is not enough to repeat the words of the particular provision.
Secondly, during the course of the review and in the context of the information before her, the Investigator notified the applicant that she was considering recommending that I exercise the discretion available to me under sections 22(9)(a)(i) and (vii) of the FOI Act to discontinue the review. In accordance with those sections, I may discontinue a review if I become of the opinion that the application to which the review relates is frivolous or vexatious or if accepting the application would by reason of the number or nature of the records concerned or the nature of the information concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of this Office. On foot of detailed submissions made by the applicant, and while it was a close call, I have decided that the review should not be discontinued.
Accordingly, I will proceed to consider whether the HSE was justified in refusing the applicant's request on the basis of section 15(1)(i) of the FOI Act.
Section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned.
Submissions
In its submissions, the HSE said that an error occurred during the FOI process which resulted in the decision-maker inadvertently numbering the original patient record instead of the photocopied records. It said that it could "definitively confirm" that the contents of the records were not amended. It said that the only change to the documents is in the numbering. It said that while it can appreciate that this has caused some confusion for the requester, the error is an administrative one and that there has been no change to the substance of the records.
The Investigator sought further information from the HSE in respect of the scale of the erroneous numbering. In more detailed submissions, the HSE said that as part of the routine processing of one of the applicant's FOI requests, his healthcare file was retrieved and photocopied. It said that the pages of the photocopied file were numbered commencing at number 1, from the back of the file to the most recent record. It said that as the file is 'live', any filing of supplementary records is completed by the medical records secretary responsible for the applicant's file. It said that due to the large number of records and the limited timeframe for processing a number of FOI requests, a decision was taken to photocopy the healthcare file in the order it was received and review the copied file and commence a numbering sequence. It said that an error occurred during the FOI processing of requests in 2020 and 2021 which resulted in the decision-maker inadvertently numbering the original patient record instead of the photocopied records. The HSE said that it could definitively confirm that apart from writing a page number on some of the records, the contents of the medical records have never been amended or altered in any way. It said that the only change to the records is in the numbering sequence. In relation to the scale of the error, the HSE said that 1,340 original records were inadvertently numbered.
The HSE provided this Office with a summary of the FOI requests submitted by the applicant. It provided supporting documents comprising decision letters and schedules issued in respect of earlier FOI requests. In its submissions, it said that the applicant submitted a request for access to his clinical file from March 2021 in October 2022 (FOI 30522). It outlined significant delays in the processing of the request and said that a decision did not issue until February 2023. It said that records created up to December 2022 were included as this was when the file was retrieved and copied. It provided details in respect of the manner in which the records were prepared for release. It said that certain records in the patient chart were deemed outside the timeframe of the scope of the request and that these were not released. It said that those records were previously released to the applicant as part of a separate FOI request (FOI 25085). It said that those records spanned 2015-2018.
The HSE referenced two further requests (FOI 25504 and FOI 26685) and said that the records spanned 2016-2020 and 2020-2021 respectively. It said that the previous decisions were posted to the applicant and that in July 2023, the relevant service undertook to email all previously released clinical healthcare records. I should note that there is some dispute over this matter. The HSE said that the healthcare records were sent via email as the applicant "now requires digital copies of files" and "in the spirit of goodwill". By contrast, the applicant said that the HSE was "mandated" to release the files following a determination made by the Data Protection Commissioner (DPC). The applicant's position is that the HSE is "perpetuating a blatant falsehood" and he expressed dissatisfaction that this Office has not challenged the position, stating that the HSE has repeatedly made this claim. It does not appear that the applicant is disputing the fact that the HSE issued the relevant healthcare records via email. Rather, his issue appears to be with the HSE's framing of why the records were released. While noting the applicant's submissions, I do not consider such framing to be within the scope of this review.
The HSE said that a review by this Office was sought in respect of its decision in FOI 30522 (OIC-135868) and that its decision was affirmed. It said that the applicant made a further request (FOI 32239) seeking copies of records withheld as outside the scope of the timeframe in the above case. It said that this aspect of the request was refused on the basis of section 15(1)(i) as the records had previously been issued to the requester under separate FOI requests (FOI 25085, 25504 and 26685). It said that the second part of his request concerned clinical files from April 2023 to the date of the request (July 2023). The HSE said that it part-granted this aspect on the basis of section 37(1) and that the matter is the subject of a review by this Office (OIC-143597). I note that a decision has since issued in that case and that the HSE's decision has been varied. It was directed to undertake a fresh decision-making process in respect of certain pages on the basis that it had not adequately demonstrated that section 15(1)(i) applied.
The HSE provided further submissions in respect of specific records. I must note that its submissions in this regard were difficult to parse. The submissions referenced particular records or sets of records, whether they came within the scope of previous requests, and "comparative/alignment" processes undertaken to identify records released under previous requests. With reference to these comparative processes, the HSE identified certain records and said that it is not apparent that they were released as part of earlier requests. It said that at the time that the current request was processed, the alignment exercise had not been completed and so the HSE cannot confirm if the records were previously released. It said that "due to the administrative burden", a cross-referencing exercise involving all previously issued decisions which would ascertain if the records had previously been issued has yet to be completed. The HSE said that in light of this and "in order to expedite and close out this case", it is happy to release records numbered 783-812 to the applicant at this time.
The HSE also included a number of tables in its submissions which detailed records and the FOI request under which they were issued. One table was entitled "un-numbered records/undetermined if previously released". In further correspondence, it said that the records detailed in that table are currently scheduled for review by the decision-maker. It said that it did not know if the records would be released in full or if redactions would be applied but that it was "the decision-maker's intention to carry out a full release if possible". The HSE said that with the exception of the records listed in the above table, it has demonstrated that the applicant has received all of the records relevant to the original scope of the request on multiple occasions and most recently by digital format.
The applicant made a number of submissions to this Office during the course of the review. In his initial submissions, he said that the HSE incorrectly altered his medical files without authorisation. He provided background information in respect of his request. Given the nature of the information provided, I will not repeat the submissions here, though I confirm I have had regard to same. With reference to the numbering error, he said that this is not an acceptable handling of medical files. He said that it is a breach of HSE policy in respect of the safe handling of medical files and also constitutes a breach of data protection legislation. The applicant said that he made the request to view in person all the affected files. He said that he has an understandable concern around the integrity of his clinical file. He said that the HSE's position is clearly unreasonable and is an attempt to hide the matter and prevent him from holding the body to account for these serious errors. He said its position is an attempt to hide how many files were affected by these errors and is an attempt to prevent him from making an accurate complaint to the DPC. He raised a number of additional concerns. He said that previous FOI files released shows that falsifications of his files occurred. He provided further detail and images to support his assertions. He said that "the point is, there has been a lot of questionable behaviour" around his medical files and that he has a legitimate interest in ensuring their integrity.
The applicant said that given that the affected files were altered in error by the HSE, its position to refuse to allow him to view the original files is unacceptable and unreasonable. He said that the FOI request is different to any files released to him via copies. He said that the unauthorised altering of the files occurred after other FOI requests were made and that if something has been added to the file that constitutes new information, any attempt to use section 15(1)(i) "would not hold ground and is incorrect". He said that he has a legitimate interest in viewing his original files and ensuring their integrity.
In further submissions, the applicant again referenced concerns about the integrity of his file. He said that he must examine the original file to fully understand the nature of certain alterations. He said that his request is not solely about the page numbering error and that that issue is one of many concerns surrounding his clinical file. He said that he would not have made the request if he was only concerned about the page numbering issue. He noted that his request is to view the originals of his clinical file, "not to dispute the fact that the HSE has released copies in the past", though he noted that he has since discovered that several files were not released. He said that reviewing copies of the file won't provide insights into the issues he has identified. He noted that he might observe that documents that should be in the file are missing and he provided an example to support this position.
The applicant made further submissions in respect of the integrity of his clinical file. He referenced a number of codes of practice, regulations and guidelines which he said set out a very strict approach to the maintenance of medical records. The applicant also made submissions in respect of the FOI process as it relates to medical files. He said that issues can and have arisen when unauthorised individuals label or add numbers to records that should not be present. He said that there is significant potential for confusion and misplacement and that this becomes even more concerning if clinicians and administrative staff inadvertently align records with FOI reference numbers, which may not be in sequence. He said that as medical records do not have their own dedicated page-numbering system the risk of record misalignment is high in the context of erroneous numbering. He said that this misalignment poses a serious risk as it can and has led to misunderstandings or even harmful outcomes for the patient.
The applicant also referenced section 17(1)(d) and said that the FOI Act permits access by granting the requester a reasonable opportunity to inspect the records. He said that he is specifically seeking to inspect the original records rather than requesting copies, as his concerns can only be fully addressed through direct inspection of the originals. He said that he does not dispute that the HSE has previously provided copies of his files but that his primary concern lies with the integrity of his clinical file. He again provided further details in respect of his concerns, including supporting documents. He stated that he was providing certain information in confidence and that he did not wish the information to be shared with the HSE. This means that the extent to which I can refer to the specific submissions is limited. However, I consider that all of the points were raised to evidence the applicant's concerns about the integrity of his medical file. It seems clear that he wishes to review his file in person to interrogate the records and investigate his concerns.
Analysis
As noted above, the HSE has provided this Office with submissions detailing the various FOI requests made by the applicant. The applicant himself has stated that he does not dispute that the HSE has previously provided him with access to copies of his file. The substantive question which I must consider is whether the applicant has a right of access to the hard-copy original version of the records affected by the numbering error contained in his medical file. The applicant has not argued that the records released to him to date are not currently available to him. While I note that he referenced a period of time during which he was unable to access previously released records, this matter appears to have been resolved on foot of the DPC's involvement.
In the circumstances, it seems to me that the question at issue is the extent to which records which have been amended constitute new records such that there is a right of access under the FOI Act. While the applicant has identified various concerns in respect of the integrity of his clinical file, section 13(4) of the FOI Act states that "subject to this Act", any reason that the requester gives for the request and any belief or opinion of the FOI body as to what those reasons are shall be disregarded in deciding whether to grant or refuse to grant a request. As such, the submissions of relevance to this review relate to the applicant's position that records have been amended. The HSE has acknowledged the numbering error which prompted the applicant's FOI request. It said that it confirmed that the contents of the records were not amended and that the only change to the documents is in the numbering.
I am not satisfied that the addition or amendment of a page number during the processing of an FOI request renders the records sufficiently different such that section 15(1)(i) cannot apply. I accept that there will be circumstances in which a record released to an applicant is subsequently amended to such an extent that it cannot be said that the record has already been released. However, I do not accept that a page number added to facilitate an FOI request, albeit erroneously, alters the record to that extent. I do not consider the records at issue to be new records because a page number has been added. The HSE has assured this Office that the contents of the records have not been amended.
With reference to the applicant's submissions, I note that he has drawn my attention to certain information in his clinical file and concerns in respect of same. While I am limited in the extent to which I can refer to the matter as the applicant has asked that certain information not be shared with the HSE, I believe it is necessary to state that the submissions relate to the amendment of certain clinical notes. The applicant used this example to demonstrate that the HSE's statement that the records have not been amended is false. However, the applicant clearly has access to the record which he says has been amended; he provided this Office with an image of the record. As such, it is clear that any amendment of the record happened prior to the record being released to the applicant. I do not consider this to undermine the HSE's position, which relates to the erroneous page numbering. Furthermore, the fact that the applicant has been provided with a copy of the record which he referenced supports the HSE's position that relevant records have already been released to the applicant.
I fully accept that the applicant has concerns about the integrity of his clinical file. However, this review is concerned solely with whether the HSE was justified in refusing to grant access to the records sought on the ground that they have already been released to him. I cannot take into account any reasons he has given as to why he made the request. While the FOI Act provides for a right to access records, it does not provide for a right to interrogate or investigate the manner in which those records have been filed or ordered. Having examined the totality of the information provided, I am satisfied that the HSE has provided adequate evidence in support of its decision to refuse access to the majority of the records at issue on the basis that they have previously been released to the applicant. The applicant himself has acknowledged that he is not disputing that the HSE has released records to him. Accordingly, I find that the HSE was justified in refusing access to the pages of records which it previously released to the applicant on foot of earlier FOI requests under section 15(1)(i), notwithstanding the fact that page numbers were subsequently added to the documents.
The applicant has correctly noted that section 17(1)(d) of the FOI Act provides that a body may grant access under the Act by providing the requester with a reasonable opportunity to inspect the record. Section 17(2) provides that where a request is for access in a particular form or manner, such access shall be given in that form or manner unless certain circumstances apply. However, section 17(2) applies where an FOI body decides to grant a request. In the current case, the HSE has refused the request on the basis of section 15(1)(i), which I have found to apply to the majority of records.
While I have found that it was justified in refusing the majority of records under section 15(1)(i), the HSE has said that it is unable to confirm whether a number of records were issued to the applicant. It referenced the following records: 119, 114-118, 107, 106, 91-103, 76-90 and 783-812. In the circumstances, I do not accept that the HSE was justified in relying on section 15(1)(i) to refuse access to those records and I direct it to undertake a fresh decision-making process with respect to the above pages. In doing so, I would remind the HSE of its obligations under section 17 of the FOI Act.
In his submissions, and in support of arguments about the integrity of his clinical file, the applicant referred to particular records. It appears that the applicant is of the opinion that certain records which should exist were not identified or released to him on foot of earlier FOI requests. However, the applicant stated that he was providing the information to this Office in confidence. As such, I have been unable to investigate the matter fully. I do not consider it appropriate to annul an effective decision to refuse further records on the basis that they do not exist or cannot be found when I have been unable to engage with the HSE in respect of the records. While I remain limited in the extent to which I can even reference the matter, I would advise the applicant that if he believes that further records exist which have not been identified, he will need to make a fresh FOI request and provide the HSE with sufficient detail to enable it to search for the relevant records. In so advising, I would draw the applicant's attention to section 12(1)(b) of the Act which requires that a request for records must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I find that it was justified in refusing access to records already released on the basis of section 15(1)(i). I find that it was not justified in refusing access to records listed in the table entitled "un-numbered records/undetermined if previously released" and I direct the HSE to undertake a fresh decision-making process in respect of those records.
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