Case number: 160244
On 7 January 2016, the applicant made a request to the hospital under the FOI Act for a copy of "all digital and written data" relating to his medical files. On 3 February, the hospital requested an extension to the deadline for responding to the request, under the provisions of section 14(1)(a) of the Act. The hospital wrote again to the applicant on 3 March and stated that it required a further extension to the deadline. However, there is no provision in the FOI Act for an extension beyond the four week period provided for at section 14(1)(a), in relation to an original decision by an FOI body. Consequently, the applicant submitted a request for an internal review on 3 March 2016 on the basis of a deemed refusal of his request (section 19(1) of the Act refers). The hospital issued a decision on 21 March and stated that it had granted access to all records. However, that decision letter did not provide the applicant with any details about rights of review, either by the hospital, or by this Office. Following communications with this Office, the hospital issued an 'effective decision' letter to the applicant on 3 June, in which it affirmed its original decision and apologised to the applicant for the delay. On 7 June 2016, the applicant sought a review by this Office of the hospital's decision.
The applicant confirmed to this Office that he was seeking a review on the basis of other records that might exist concerning meetings the hospital may have had about him. The applicant indicated that he requires a formal decision on the matter. Consequently, I consider it appropriate to conclude this review by way of a formal, binding decision.
In carrying out my review, I have had regard to the correspondence between the hospital and the applicant as set out above. I have also had regard to the submission and other communications from the hospital, to communications between this Office and the applicant and to the provisions of the FOI Act.
This review is solely concerned with whether the hospital was justified in its decision, on the basis of section 15(1)(a) of the FOI Act, to refuse access to additional records concerning meetings about the applicant on the ground that no further records exist.
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 such cases 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. 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 it has taken all reasonable steps to locate the relevant records.
The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).
While the applicant provided information to this Office in support of his request, he also acknowledged that he has no evidence that any meetings took place at the hospital. I appreciate that the applicant has suffered poor health and that his treatment is a matter of great concern to him. However, the FOI Act is concerned with records which exist and can be found as opposed to records which ought to have been created.
In response to a request from this Office, the hospital provided details of the searches undertaken to locate records relating to any meetings the hospital may have held concerning the applicant's personal medical requirements. In its submission, the hospital stated that typically notes regarding a patient's treatment would be found "first and foremost in the Healthcare Record". It also stated that searches had been conducted in a number of other areas and departments within the hospital, including its archived FOI and complaints folders. The hospital also stated that it had received several FOI requests from the applicant in relation to his healthcare record and that in response to those requests, it had granted access to records.
The position of the hospital is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the hospital to carry out indefinite new searches. In view of the information provided by it relating to the searches undertaken and the records identified in the schedule, I consider that the hospital has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies and that the hospital was justified in its decision on the ground that no further records exist or can 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 the hospital.
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 from the date on which notice of the decision was given to the person bringing the appeal.