Case number: 150014

Whether the Defence Forces was justified in its decision to refuse access to further medical records to the applicant under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot 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

In a request received on 15 September 2014, the applicant requested access to a copy of his personal medical records from the Defence Forces. On 9 and 14 October 2014, the Defence Forces released two sets of records to the applicant relating to his request. On 30 October 2014, the applicant made an internal review request and on 19 November 2014 the Defence Forces released 10 further records relating to his request. On 16 January 2015 the applicant applied to the Commissioner for a review of the Defence Forces' decision.

Following queries from this Office during the course of this review, the Defence Forces has located and released a number of further records to the applicant. It is the Defence Forces' position that it cannot locate any further records relating to the applicant's FOI request.

I note that Ms Sandra Murdiff, Investigating Officer, contacted the applicant by email on 6 May 2015 and outlined her view that the Defence Forces had undertaken reasonable searches for records relating to his request, pursuant to section 10(1)(a) of the FOI Act. Ms Murdiff invited the applicant to make further comments if he disagreed with her view. The applicant replied, and indicated that he remains of the view that further records should exist relating to his request. Accordingly, I have decided to conclude this review by way of a formal binding decision.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Defence Forces' decisions on the matter and its communications with this Office; to the applicant's communications with this Office and the Defence Forces and to the provisions of the FOI Act.

Scope of Review

The scope of this review is solely concerned with whether or not the Defence Forces was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse access to further records relating to the applicant's request on the basis that the records do not exist or cannot be found.

Preliminary Matters

It is important to note that the applicant's request is in relation to records held by the Defence Forces in regard to him, and the Commissioner's review is concerned only with the matter of access to these records. The Commissioner's remit does not extend to examining the actions of the Defence Forces in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act. Our role in this case is to review the Defence Forces' decision in relation to the records which were requested under the FOI Act. Furthermore, I should explain that in implementing the terms of the FOI Act, this Office is primarily concerned with ensuring access to existing records in accordance with the provisions of the Act. The Act does not provide a right of access to records which ought to exist, nor does it require a public body to create a record.

Furthermore, section 8(4) of the FOI Act expressly provides that decision makers should, subject to the provisions of the Act, disregard any reasons that the requester has for making a request.

Analysis and Findings

Section 10(1)(a)
Section 10(1)(a) of the FOI Act provides that a public body may refuse access if the record concerned 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 Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v Information Commissioner [2002] No. 18 MCA, available on the website of this Office at www.oic.ie.

In submissions made to this Office, the Defence Forces has provided details of its records management policy and procedures and the steps taken to locate the records in question. The Defence Forces has outlined the searches which took place, which included manual searches of the Military Medical Facility, as well as the file room, X-ray department and Out Patients Department in St Bricin's Military Hospital. The Defence Forces also stated that searches carried out in response to queries from this Office encompassed all medical installations in which the applicant might have had treatment during the relevant time. The Defence Forces has stated that it has searched non-standard storage locations and contacted doctors no longer serving in the Defence Forces in an effort to locate relevant records. It also stated that it conducted searches manually and where appropriate by computer, including searches using the applicant's name and army number as well as variations on his name to try and capture all records. In essence, the Defence Forces' position is that all records relating to the applicant's request that exist or can be located have now been released to him.

Essentially, the applicant is of the view that, pursuant to the Defence Forces' own regulations and guidelines, certain medical tests must have taken place and records must exist of these tests, as well as other related records. The Defence Forces has acknowledged that these regulations are in place and that the records should exist in many cases, but states that following exhaustive searches they cannot be located. It has indicated that the provision of details of specific records by the applicant at internal review and during this review have allowed it to locate records which were not kept on his medical file. It has stated that these records were released to the applicant in an effort to fulfil his request. The Defence Forces has also suggested other public bodies, such as the Mater Hospital, which may hold medical records relating to the applicant. It has further stated that the results of medical tests in some cases may have been transmitted verbally and not noted on files. Although the applicant disputes this and contends that further records exist which have not been released to him, he has not been able to provide any evidence that the relevant records should, in fact, exist.

While it is unsatisfactory that certain records the Defence Forces acknowledges should exist cannot now be located, having considered the submissions of both parties and the measures taken to locate the records, I find that the Defence Forces has taken all reasonable steps to locate any further records and that its decision was justified under 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 Defence Forces' decision to refuse access to further relevant records under section 10(1)(a) of the FOI Act.

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