Case number: 150117

Whether the HSE was justified in its decision to refuse access to further medical records sought by the applicant, in particular records relating to a delivery on [Date] April 1967, under section 15(1)(a) of the FOI Act on the basis 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 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 24 October 2014 the applicant submitted a request to the HSE through her solicitor for all maternity records relating to her and in particular, records relating to a delivery on [Date] April 1967. For the purposes of this decision, all references to the "applicant" may be read as references to the applicant or her agents, as appropriate. The HSE located and released one record relating to the 1967 delivery, namely a copy of an entry in the Labour Ward book for 1967. The HSE refused access to further relevant records under section 15(1)(a) of the Act, on the basis that no further records exist or can be found.

On 25 February 2015, the applicant sought an internal review of the HSE's decision. On 12 March 2015, the HSE issued its internal review decision, affirming its original decision. On 20 April 2015 the applicant sought a review by this Office of the HSE's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 12 June 2015 setting out details of the searches carried out by the HSE to locate records within the scope of her request, and of details of the search procedure followed by the HSE in its efforts to locate relevant records. Mr Foley informed the applicant of his view that the decision of the HSE to refuse access to the records sought was justified, and invited the applicant to make further comments if she disagreed with this view. Following a further exchange of correspondence wherein certain matters were clarified with the HSE, the applicant indicated that she required a binding decision on the matter. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the HSE and the applicant as set out above. I have also had regard to communications between this Office and the applicant, to communications between this Office and the HSE, and to the content of the record released to the applicant.

Scope of Review

This review is concerned with whether the HSE was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the 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.

Preliminary Matters

During the course of this review, the applicant queried whether any other entry on the Labour Day Ward Book that had been identified by the HSE contained information relating to her. Having examined the record, I am satisfied that the other entries contained in the Labour Day Ward Book do not relate to the applicant, and therefore are outside of the scope of this review.

Analysis and Findings

The HSE's position is that it cannot find any further records relating to the delivery in 1967. Section 15(1)(a) of the Act provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. 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 v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

In a submission to this Office dated 10 June 2015, the HSE provided details of the searches it undertook in an effort to locate records coming within the scope of the applicant's request, and of its record management practice in relation to records of a similar age to that which the applicant sought. As I have outlined above, Mr Foley of this Office has provided the applicant with details of the searches performed and of the record management practices of the HSE. 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.

The HSE stated that it receives many requests for older records, similar to the form of records being sought by the applicant. As a result, the HSE developed a search checklist for records of this kind, when they cannot immediately be found. In this instance, the HSE has stated that three members of staff followed the checklist in order to locate further records within the scope of the applicant's request, though this process did not locate any further records relating to the applicant. The HSE has expressed its regret that further records relating to the applicant could not be located.

Having considered the submissions of both parties, and the measures taken by the HSE to locate the records sought by the applicant, I am satisfied that the HSE has taken all reasonable steps to locate further records within the scope of the applicant's request. I find, therefore, that the HSE's decision to refuse the applicant's request for further records under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to further records under section 15(1)(a) of the FOI Act, on the basis that they do not exist or cannot be found.

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 four weeks after notice of the decision was given to the person bringing the appeal.


Stephen Rafferty,

Senior Investigator