Case number: 160355
The applicant, acting through his legal representative, submitted a request to the Hospital on 4 December 2015, for copies of all medical records held by the Hospital relating to him. On 7 April 2016, the Hospital decided to grant the request and released a copy of the applicant's medical file.
On 4 August 2016, the applicant sought an internal review of that decision on the ground that he had not received all relevant records. He noted the absence of a copy of the Ambulance Patient Care Report following his transfer by ambulance from Mayo General Hospital and details of additional observations made by ambulance staff which, according to the copy of the Ambulance Patient Care Report he had received separately from the National Ambulance Service, were left with the staff nurse on duty on the ward.
The Hospital affirmed its decision on 25 August 2016, stating that it could not locate the Hospital's copy of the Ambulance Patient Care Report or any additional ambulance notes relating to the applicant's transfer, and it was not able to confirm if the Hospital staff ever received this documentation. On 26 August 2016, the applicant sought a review by this Office of the Hospital's decision in respect of the Ambulance Patient Care Report and additional ambulance notes.
During the course of this review, the Hospital provided this Office with information regarding the applicable record management policies and the searches conducted to locate the records sought by the applicant. Ms Buckley of this Office provided the applicant with details of those searches on 7 November 2016. She also informed him of her view that the Hospital was justified in deciding that the records sought did not exist or could not be found. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means 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 communications between this Office and both the applicant and the Hospital on the matter.
This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant's request for a copy of the Ambulance Patient Care Report and additional ambulance observation notes on the ground that the records sought do not exist or cannot be found.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases 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 decision maker concluded that it has taken all reasonable steps to locate the records.
In a submission to this Office, the Hospital provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, this Office has already provided the applicant with these details so I do not propose to repeat them in full here. In summary, the Hospital stated that its policy is for all patient information, including Ambulance Patient Care Reports or additional ambulance observation notes, to be kept in the patient's chart. The Hospital stated that it searched the applicant's chart but could not locate the records sought. The Hospital also conducted a physical search of the ward and the high dependency unit including the ward clerk's desk, nurse's station, and doctor's office. In order to address the possibility that the Ambulance Patient Care Report and additional notes had been misfiled in another patient's medical chart, the Hospital stated that it manually searched the medical charts of 31 patients who were on the relevant ward the night that the applicant was admitted to the Hospital.
The Hospital stated that it contacted the nursing staff and medical registrar on duty the night that the applicant was transferred to the Hospital. The staff nurse said that she was given a verbal handover by the ambulance crew, but has no memory of any documentation as her primary concern was the care of the applicant whose condition had deteriorated en route to the Hospital.
While I note that the staff nurse has no memory of the records sought having been handed over by the ambulance staff, it does not appear to be in dispute that the records sought by the applicant did, at some stage, exist. In his submission to this Office, the applicant referred to the copy of the Ambulance Patient Care Report provided by the National Ambulance Service in which the applicant's vital signs were recorded at various stages throughout his ambulance transfer. The report allows for such recordings to be made on four occasions only and I accept the applicant's contention that vital other recordings must have been taken, given the length of time the journey took. Indeed, I note the specific comment on the report that additional observations "were written on the pt transfer notes which were left with the staff nurse on duty in the ward". I also note that the Hospital has confirmed that the Ambulance Patient Care Report is carbonated and that the carbonated copy is held by ambulance crew, which suggests that the Hospital should have received a copy.
Nevertheless, the fact remains that the Hospital cannot locate the records in question. This is very unfortunate and I can appreciate that this must be a matter of great concern for the applicant. However, the role of this Office is confined to determining whether the Hospital has taken all reasonable steps to locate the records. Given the Hospital's detailed description of the steps it took in this case, I am satisfied that it has, indeed, taken all reasonable steps. The FOI Act clearly envisages that situations may arise where records known to exist simply cannot be found. Unfortunately, this appears to be one such situation. If the Hospital locates the records at some stage in the future, I expect it to make them immediately available to the applicant.
I find that the Hospital was justified in its decision to refuse the applicant's request for access to the records sought on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital in this case.
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.