Case number: OIC-67064-M7K1W4
17 February 2021
The applicant is a member of An Garda Síochána (AGS). On 5 November 2019, he made an FOI request to AGS for access to the following records held about him: “Medical records and notes of meetings with the Chief Medical Officer (CMO), copies of correspondence from the CMO to Garda Management. External reports and requests sent and received for same to any other organisation or person. Details and notes of telephone consultations between the CMO and medical professionals in respect of my treatment. Employee Assistance Service (EAS) records.” AGS’s FOI Office forwarded the request to the CMO’s Office for attention. On 25 November 2019, the CMO’s Office posted the applicant’s medical records to his home and informed the FOI Office of this. On 9 December 2019, the applicant informed the FOI Office that he had not received his records from the CMO and on 10 December 2019, he applied for an internal review on the basis that AGS had failed to supply the requested records. On 30 December 2019, AGS affirmed its original decision.
On receipt of the internal review decision, the applicant informed the FOI Office that he had still not received his records. The FOI Office arranged for the applicant to collect his medical records from the CMO’s Office on 21 January 2020. After collecting and examining the records, the applicant informed the FOI Office that they were incomplete and much of the requested documentation remained outstanding. The FOI Office then consulted with the CMO’s Office at which stage it was advised that the CMO’s Office had only released medical records, as correspondence to and from Garda Management should be provided by the Garda Sick Leave Section in Human Resources Management (HRM). The FOI Office advised the applicant of this and the applicant requested that information be sought from Garda Management in the various sections that he had been attached to. The FOI Office forwarded the applicant’s FOI request to the EAS for their attention and it sought further records from the Garda Sick Leave Section. It also sought records from various sections that the applicant had been attached to.
On 17 February 2020, the FOI Office provided the applicant with additional records, which had been located by Garda Sick Leave Section and a number of other offices. It refused access to parts of certain records on the basis that they are exempt under section 37(1) or fall within the exclusion for AGS in Schedule 1 Part 1(n) of the Act. AGS informed the applicant that he had a right to request an internal review in relation to its decision in this regard. On 27 February 2020, the FOI Office provided the applicant with further records that had been located. It refused access to parts of certain records having regard to sections 29(1), 31(1)(a), 32(1)(a)(iv), 37(1) and Schedule 1 Part 1(n) of the Act. The FOI Office informed the applicant that he could request a review by this Office of its decision.
On 9 March 2020, the applicant applied to this Office for a review of AGS’s decision. The applicant states that AGS ought to hold further records, which fall within the scope of his request and provided this Office with details of such. The applicant confirmed to this Office’s Investigator that he is not seeking a review in relation to AGS’s decision to redact or refuse certain records. In its submissions to this Office, AGS outlined the searches it had undertaken to locate all relevant records. AGS provided the applicant with two files of EAS records. AGS stated that it does not hold any further records falling within the scope of the applicant’s request and it relied on section 15(1)(a) of the Act in this regard. This Office provided the applicant with an outline of the searches as described by AGS and informed him of the section 15(1)(a) claim. In reply, the applicant maintains his position that AGS has failed to locate all relevant records.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and AGS and to the communications between this Office and both AGS and the applicant on the matter.
The applicant’s original FOI request was specific in listing categories of records, as set out above, to which he wished to acquire access. The jurisdiction of this Office is based on the wording of the original FOI request and internal review request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request or to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed.
In addition, after collecting his records from the CMO’s Office, the applicant contacted the FOI Office as he felt the records provided were not sufficient. AGS states that the applicant specifically requested information be sought from a number of different Offices including Offices he had been attached to. AGS states that while this was not part of the applicant’s original request, the FOI Office agreed to facilitate same given the stress endured by the applicant. As those records did not form part of the original request, I do not intend to consider records held by those sections in this review. Should the applicant wish to pursue the issue of whether those sections hold further records, it is open to him to make a fresh FOI request for these.
Accordingly, the scope of this review is confined to whether AGS was justified in refusing to release additional records falling within the scope of his request held by the CMO’s Office, Garda Sick Leave Section and EAS on the basis of section 15(1)(a) of the Act.
There are a number of preliminary points that I wish to make in relation to the manner in which AGS dealt with the applicant’s FOI request.
AGS states that the applicant’s FOI request was processed in accordance with CPU Guidance Note no.10. That guidance note states that where an FOI request includes both sealed medical reports and other records, the requester should be advised to forward the request for the sealed medical reports to the CMO for processing and a decision in respect of the other records coming within the scope of the request will be made by the FOI body. In this case, the FOI Office forwarded the request for medical records to the CMO. Records held by Garda Sick Leave Section and EAS records were only considered after the internal review decision had issued and the applicant complained that he had not received those records.
In its submissions to this Office, AGS states “it was the opinion of the FOI Officer that the only records sought by the applicant were medical records held by the CMO’s Office. The FOI Officer was not of the view that EAS records were being sought in his original request.” The applicant expressly requested EAS records in his original FOI request. He also sought correspondence from the CMO to Garda Management, external reports, notes of calls between CMO and medical professionals. In my view, there was a failure by AGS to consider the full scope of the request, which was set out clearly by the applicant.
In my view AGS did not adequately address the applicant’s claim that he had not received his medical records from the CMO’s Office. AGS states that the CMO’s Office sent the applicant’s medical records by ordinary post with return addresses on both of the double envelopes in which they were packaged. The records were not returned to the CMO’s Office as undelivered. When the applicant applied for an internal review, on the basis of a failure to supply the requested records, the internal reviewer noted that while the applicant “states that he did not receive the records sent to his home address on 25 November from the CMO, I am satisfied that the requested records were dealt with within the allocated timeframe.”
In communications with this Office, AGS stated that “in the normal course of events medical records are issued by registered post, however the records were issued by regular post in this instance. It should be noted that the CMO’s Office lodged an investigation query with An Post with regard to the records.” It also states that the CMO’s Office investigated the chain of events that led to the records going missing. While the request may have been dealt with in a timely manner, the internal review decision did not address the fact that the applicant’s medical records were missing. It seems to me, that in circumstances where the records were not issued by registered post, as is normally the case, it would have been appropriate at that point to have taken steps to ensure that the applicant was provided with copies of his medical records.
Section 15(1)(a) - "Search" issues
Section 15(1)(a) 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. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).
The applicant says he was informed that the Garda Sick Leave Section in HRM facilitates the transmission of correspondence between the CMO and local Garda Management in respect of Garda members. He says he accepts this, however his difficulty is that the CMO’s office refused to release any reports or correspondence issued through Garda Sick Leave Section and it directed him to seek these records elsewhere. The applicant says that it is not possible for him to discern if reports were issued or received.
The applicant says he is informed that notes of communications with his medical professionals do not exist. He says he finds it hard to believe that a medical professional would not make any notes regarding same. The applicant says the CMO specifically requested permission in writing to correspond with his treating professionals, yet he is expected to accept that no record exists of any subsequent contact with those persons. Finally, the applicant says he has still not been provided with his EAS records.
Following the applicant’s submissions, this Office requested AGS to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made, including those specifically mentioned by the applicant. It also sought information on AGS’s records management practices.
AGS states that on review of a Garda member, the CMO will provide advices on the member’s fitness and ability to conduct their duties to local management. It states that these advices are initially forwarded to Garda Sick Leave Section in HRM for onward transmission to a member’s Divisional Office. It states that any reply correspondence is then forwarded back to the CMO by Garda management via Garda Sick Leave Section in HRM. AGS states that this correspondence is not treated as part of the confidential medical file and the cover letter issued by the CMO’s Office with the confidential medical file clearly states this. AGS states that while this correspondence was not provided as part of the confidential medical file, it was subsequently provided as part of the Sick Leave Section records provided to the applicant.
AGS states that at the applicant’s first consultation with the CMO, he declined to give consent for the CMO to initiate communication with or contact his treating clinical professionals seeking information about his clinical circumstances, clinical management and clinical progress. It states that as the CMO had no consent for such communication or contact, no such communications or contacts took place and as such no records of same exist. AGS states that periodically with the applicant’s approval/consent, reports were received from his treating clinical professionals, it states that all these reports were included in the confidential medical file released to the applicant.
AGS states that, as with confidential medical records held by the CMO’s Office, it is protocol that EAS records are forwarded directly to the requester by EAS given the sensitive nature of the records. During the course of the review, AGS released a file of EAS records to the applicant. Following receipt of the records, the applicant contacted this Office and stated that the records from EAS were dated up to December 2017 and he stated that he continued to have contact with EAS in 2018 and 2019. This Office raised the issue with AGS and further records from 2018 and 2019 were subsequently provided to the applicant.
AGS provided this Office’s Investigator with detailed accounts of its internal procedures concerning referral of members to the CMO, its filing systems and the various sections which were searched for records. It states that if a member remains unfit for duty for a period of 28 days or more (periods of 28 days or more are considered long term sick leave), a report is submitted by the Chief Superintendent to the Garda Sick Leave Absence seeking the advices of the CMO. The report is then forwarded to the Garda Occupational Health for review and recommendation. Records are then created and held by that service. AGS states that if the member engages the services of the EAS Officer, a record may also be held by that service.
The applicant has received his medical records from the CMO’s Office. He has also received a file of records from Garda Sick Leave section, which contains correspondence from the CMO to local Garda Management, correspondence from the CMO to HR, absence reports, referral forms, medical certificates etc. Finally, the applicant has received two files from EAS which contain records dating up to the end of 2017 and records created in 2018/2019.
I note that the applicant has been frustrated by the way in which his request was handled by AGS. From reviewing the file, it appears to me that there was a lack of co-ordination between the various sections of AGS that were involved in searching for records relevant to the applicant’s request. As a result, this led to delays and confusion as to which sections would deal with which records, and confusion as to the scope of what the applicant had requested. However, it is also clear to me that after the applicant examined his medical file and told AGS that relevant records had not been provided, considerable resources were devoted by AGS to locating and examining the records sought by the applicant.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, while the applicant is of the view that further records should exist, no specific evidence that this is the case is before me.
Taking into account the search details provided by AGS, its responses to the applicant's points above, and to this Office's queries, I am satisfied that AGS has now conducted reasonable searches to locate the records sought and that no additional records exist or can be found. It is regrettable that these searches were not carried out when AGS was first processing the applicant’s request.
Accordingly, I find that AGS was justified in its decision to refuse to release additional records on the basis of section 15(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the decision of AGS in this case. I find that the An Garda Síochána was justified in refusing access to additional records falling within the scope of the applicant’s request under section 15(1)(a) of the Act on the basis that they either do not exist or cannot be found after reasonable searches have been carried out.
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.