Case number: 150147
On 8 March 2015, the applicant made a request to UCD for access to copies of patient procedure anaesthetic logs and anaesthetic drug plans on anaesthesia pre-assessment forms bearing his name, student ID number or initials that were created in UCD Veterinary Hospital (the Hospital) between 20-31 October 2014. He stated that identifying details such as the client's (owner's) name, and the name, information, breed and date of birth of the patient (the animal concerned) could be redacted from any records released. On 10 April 2015, UCD refused the applicant's request under section 15(1)(g) of the FOI Act on the basis that the request formed part of a pattern of manifestly unreasonable requests.
On 14 April 2015 the applicant sought an internal review of UCD's decision. On 1 May 2015, UCD issued a decision affirming its original decision. The applicant sought a review by this Office of UCD's decision on 16 May 2015.
During the course of the review, Ms Sandra Murdiff of this Office contacted UCD and informed it of her view that section 15(1)(g) did not apply to the applicant's request in this case. UCD accepted her view and on 11 December 2015, it released a number of records to the applicant comprising various anaesthetic logs and pre-assessment forms relating to six patients in respect of eight visits to the Hospital. While one of these visits took place on 2 December 2014 and was therefore outside the timeline of the applicant's request I understand that the relevant record was included for the sake of completeness. UCD also provided details of the searches undertaken to locate relevant records in this case to the applicant.
I note that Ms Murdiff contacted the applicant on 21 December 2015 and informed him of her view that, as UCD released records in relation to this case, there was nothing further to review. She invited him to make a submission if he did not agree with this view. On foot of a request from the applicant's wife on his behalf, the Office agreed to extend the deadline for receipt of a submission until 2 March 2016. Subsequently, Ms Murdiff contacted the applicant's wife to clarify if he still wished to make a submission. However, no submission has been made to date. Ms Murdiff wrote to the applicant again on 30 March 2016 and provided him with details of the searches carried out by UCD. She also informed him of her revised view that UCD's decision was justified under section 15(1)(a) of the FOI Act and again invited him to make a submission if he did not agree. Nothing has been received to date. Accordingly I have decided to conclude this review by way of a formal binding decision.
In carrying out my review, I have had regard to correspondence between UCD and the applicant as set out above, to details of various contacts between this Office and UCD and to details of various contacts between this Office and the applicant.
This review is solely concerned with whether UCD was justified in deciding that no further records relating to the applicant's request exist or can be found.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record 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 FOI 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 FOI 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 FOI body, on the basis of which the FOI 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 records at issue in this case comprise pre-printed assessment forms and anaesthetic records completed by the students and staff treating the patients concerned, as well as some accompanying handwritten notes. The pre-printed forms show the relevant patient number printed on each page. It is my understanding that these records were created at the time of the assessment/procedure and retained on the relevant patients' files. Both pre-assessment forms and anaesthetic records were released in respect of six visits, and anaesthetic forms with accompanying notes in respect of the remaining two. The applicant indicated in an email to this Office dated 16 May 2015 that he believed that records bearing his name should exist for eight separate procedures. While the records released concern six patients, I note that two of the patients attended the Hospital on two separate occasions.
It appears that two pre-assessment forms were not located. In a submission to this Office dated 29 March 2016, UCD provided details of the steps taken to locate the records concerned, which Ms Murdiff subsequently provided to the applicant. It stated that it first identified the patients involved and then searched the relevant files. It stated that the records at issue are held in hard copy only and there are no electronic copies created. It also stated that all requests for access to patient's files are dealt with under the FOI Act and the unit in question has a lot of experience in locating these type of files for release.
UCD stated that there was no pre-assessment form on file in relation to one patient, and only one pre-assessment form in relation to a patient who attended on two consecutive days. It stated that the Commercial Project Manager in the Hospital confirmed that these records could not be located. It also stated that while pre-assessment forms should be completed for each patient for each visit, in practice, it is aware that is not always done. Furthermore, UCD stated that the records in question are loosely enclosed in the files in use and each file passes through a number of hands during a client's visit. In essence, UCD's position is that no further records relating to the applicant's request exist or can be located having taken all reasonable steps to locate them.
Taking all of the above into consideration, I am of the view that UCD's decision to refuse to release further records to the applicant was justified, on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCD in this case.
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.