Case number: 140189

Whether the HSE was justified in its decision that certain records sought by the applicant relating to his medical treatment at Sligo General Hospital cannot be found after all reasonable steps have been taken to ascertain their whereabouts

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted an FOI request, through his solicitor, to the HSE on 6 May 2014 for his entire medical records held by Sligo General Hospital. The FOI request was acknowledged by the Hospital on 12 May 2014 but not responded to. The applicant applied for an internal review of his request as he did not receive a decision within the required timeframe. The HSE issued a decision on 24 July 2014 stating that it was granting the applicant's request and enclosing relevant records; this response of the HSE was beyond the deadline by which internal review decisions are required to be issued and no explanation was given for the delay. In the meantime, the applicant applied to this Office for a review of his request, on 22 July 2014.

In subsequent correspondence with this Office, the applicant stated that while some records were enclosed with the HSE's delayed response to the internal review request, many of the records sought had not been furnished. In particular, the applicant sought records relating to his treatment at the Hospital on 12 January 2014, following a road traffic accident, and subsequent records relating to follow up treatment. During the course of this review the HSE found and released further records to the applicant and, on 3 October 2014, the solicitor for the applicant confirmed to Mr. Christopher Campbell of this Office that the only records still outstanding were records relating to the treatment of the applicant at Sligo General Hospital Emergency Department on 12 January 2014. Delays by the HSE in responding to search questions from this Office contributed to the length of time taken to conduct this review. To date these records have not been found and I am now of the view that this review should proceed to a formal binding decision.

In conducting this review I have had regard to the submissions of the HSE and its communications with this Office and the applicant, to the communications of the applicant with the HSE and this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The position of the HSE is that the Emergency Department records relating to the treatment of the applicant at Sligo General Hospital on 12 January 2014 cannot be found. In his correspondence with this Office, the applicant requested an investigation of the manner in which the HSE dealt with his FOI request and the delays encountered. It is disappointing to note that the HSE failed to meet the statutory timeframes for processing the request. However, this review has been conducted under section 34(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the HSE. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 36(1) of the Act. Accordingly, this review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the applicant's Emergency Department records on the ground that they cannot be found after all reasonable searches have been conducted to ascertain their whereabouts.

Analysis and Findings

Section 10(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. The Commissioner's role in cases such as this is to review the decision of the public 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 public body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In its submission to this Office, the HSE stated that following a check of its patient management database, it could confirm that the applicant attended the Emergency Department on 12 January 2014. It explained that following attendance and treatment in the Emergency Department, the patient notes are scanned on a system called 'Adest' and the Emergency Department notes are filed in attendance date order in the Emergency Department. If the patient is admitted the notes are filed in the patient chart. The HSE stated that the patient notes were not scanned in this case and the Hospital chart was checked but the records were not found.

The HSE provided the following details of its record management practices in the circumstances of this case and the searches it carried out for the missing records:

A check was conducted to see if the records may have been misfiled, by conducting a search of the folders containing Emergency Department notes.
A search was carried out within the Reception area, Doctors' Office, Triage Office, Secretaries' Offices, Consultant Offices, and Treatment rooms of the Emergency Department.
The HSE confirmed that the applicant attended the Physiotherapy Department and while the patient's notes are not required for physiotherapy attendance, a physical search of that Department was also carried out.
The IPMS database system records the patient attended at an Outpatient clinic of Dr Walsh on the 27 February 2014. The medical notes were checked for this date and the secretaries' office was also searched.

In response to further queries from this Office the HSE stated it is not possible to check the Adest system for evidence of additions or deletions. It contacted the doctor who treated the applicant on the day in question but who has since moved to another Hospital. The doctor stated that he has no recollection of the events of the day. The HSE stated that the disappearance of the records in this case remains a mystery to the staff at the Hospital and commented that the nature of Emergency Department records is that they are compact and are moved about for scanning and filing.

I can fully appreciate the applicant's concern at the HSE's failure to locate all of his medical records, particularly ones that are known to exist. However, the role of this Office is confined to determining whether the HSE has taken all reasonable steps to locate the records. It is an unfortunate fact that records can, on occasion, be misplaced. I note that the HSE has confirmed that if the records are located they will be presented to the Consumer Services Office for release. It seems to me that the Hospital has conducted searches in all the relevant locations where it would expect the records to be held and that it conducted searches for possible misfiling of the records. Accordingly, having regard to the details of the steps taken by the HSE in this case, I am satisfied that the HSE has taken all reasonable steps to locate the records sought and I find that it was justified in deciding to refuse the request for the applicant's Emergency Department records on the basis of section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator