Case number: 140296

Whether the HSE was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records relating to the applicant on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

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

On 28 April 2014, the HSE received a request from the applicant for all records relating to (i) her attendance at her GP's surgery (the practice); (ii) her medical card; (iii) her attendance at Bons Secours Hospital Cork; and (iv) correspondence from or on behalf of members of a named association about the applicant.

On 18 June 2014, the HSE decided to part-grant the request, releasing 52 records in full and releasing three records in part, redacting certain information under section 28 and section 26(1)(a) of the FOI Act. It transferred the medical card aspect of her request to the Primary Care Reimbursement Service (PCRS). On 7 November 2014 the HSE wrote to the applicant and released records it held relating to her medical card application. The applicant sought an internal review of the HSE's original decision and on 19 September 2014, the HSE issued an internal review decision varying its original decision, and released in full the three previously redacted records. On 23 October 2014, the applicant sought a review by this Office of the HSE's decision.

During the course of this review, both Wexford Local Health Office and the PCRS identified further records relating to the applicant's medical card and released these to her. However, as the applicant remains of the view that further relevant records should exist, I have now decided to conclude this review by way of a formal binding decision.

In carrying out this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and to communications between this Office and the HSE. Finally, I have had regard 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 the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse access to further records on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts. It is important to note that as Bon Secours Hospital Cork is a private hospital that is not subject to the provisions of the FOI Act, this review cannot consider whether any relevant records are held by the Hospital.

Preliminary Matters

The applicant questioned the appropriateness of a certain medication she was prescribed by the practice, and requested that this Office make the practice "account" for this. While records relating to the applicant's attendance at the practice are relevant to this review, it is not the role of this Office to make any determination on questions of clinical practice; be it in terms of the exercise of professional judgment, the appropriateness of treatment, or otherwise. Therefore, this decision does not contain any consideration of such matters and the scope of this review is as is outlined above.

Furthermore, section 8(4) of the FOI Act provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons the requester has for making a request. It is important to further note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally or to investigating complaints against public bodies.

Analysis and Findings

The HSE's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant. That section provides that a public body may refuse a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in a case 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. 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 was reasonable. The Commissioner's understanding of his 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 the website of this Office at www.oic.ie).

In a submission to this Office dated 24 February 2015, the practice provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request. I note that Mr Benjamin O'Gorman of this Office has previously provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

Mr O'Gorman also sought details of the searches the HSE conducted to locate records relating to the applicant's medical card. The HSE stated that since 1 July 2011 the medical card scheme had been centralised and processed through the Office of the Primary Care Reimbursement Scheme (PCRS), and the PCRS holds all medical card records from that date. The HSE stated that after the applicant had been issued with a medical card in 1998, she was issued with medical cards on review. It said that all medical card records created by Wexford Local Health Office prior to centralisation were filed alphabetically in boxes and archived. The HSE explained that manual and electronic searches were carried out of the archive and that the boxes for the letters before and after the applicant's last name were checked, as were the boxes for the letters of each initial of her full name. It said that there was a possibility paper records relating to the applicant had been destroyed when the medical card scheme was centralised. It explained that some medical card records which were more than seven years old, and had not been assessed on medical grounds, were destroyed - the applicant's medical card had not been assessed on medical grounds.

The PCRS stated it conducted electronic searches of the HSE PCRS National Schemes Viewer, by name, address, and date of birth. It said that this search resulted in the applicant's medical card application number, her medical card number, and the name of her doctor. The PCRS stated that there was no possibility records may have been misfiled/misplaced as the filing system is electronic and contains all relevant records. It said that while paper records prior to 2007 have been destroyed, all computerised records in respect of these claims would still exist.

While the applicant may not be satisfied with the HSE's responses, she has provided no supporting evidence to suggest that other records do, indeed, exist. The position of the HSE is that it cannot find any further records concerning the applicant's FOI request for records held by her GP practice or in relation to her medical card application. Having reviewed the steps taken by the HSE to locate the records at issue and having considered its explanation of why certain other records do not exist, I am satisfied that the HSE has taken all reasonable steps to locate all relevant records and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's decision 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