Whether the HSE was justified in its decision to refuse the applicant’s request for information as to whether his mother was with him for the duration of his stay in a County Home and for any information held relating to his father on the ground that no relevant records exist or can be found
21 May 2019
The applicant in this case was born in 1944 in a certain County Home and was subsequently boarded out from the Home. On 18 July 2018 he submitted a request to the Adoption Services, TUSLA for information as to whether his mother was with him for the duration of his stay in the County Home and for any information held relating to his father. TUSLA subsequently transferred the request to the HSE as the relevant body that holds records relating to County Homes.
On 18 October 2018, the HSE refused the applicant's request under section 15(1)(a) on the ground that no relevant records exist or could be found. It stated that the registers which contain information regarding admissions to the County Home commence from 1955 only and that it does not have any records of admissions before this time. It further stated that while there are registers containing details of births in the home, it does not hold a register of births for a certain number of years, which includes the year in which the applicant was born.
The applicant's sought an internal review of that decision, following which the HSE affirmed its original decision. During the course of the review the HSE provided the applicant with some information it located about his birth. The HSE also provided this Office with details of its record management practices and of the searches it carried out in an effort to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with those details and informed him of her view that the HSE was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act. The applicant indicated that he wants a formal decision on his case.
In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.
Scope of Review
The scope of this review is concerned solely with whether the HSE was justified in refusing access to information as to whether the applicant's mother was with him for the duration of his stay in the County Home and for any information held relating to his father on the ground that the records sought do not exist or cannot be found.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As outlined above, the HSE provided details of the searches conducted to locate the records sought by the applicant and of its record management practices. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the HSE explained that it carried out searches of the boarding-in registers it holds which contain details of children who stayed in the County Home. It said that it holds both birth registers and boarding-in registers for dates between 1949 and 1984 and a log of the registers is maintained. It stated that this log was checked for registers that fell within the dates specified by the applicant. It said that manual searches were also conducted of the registers and no boarding-in registers were found which would indicate if his mother was with him during his time at the County Home. Birth and death registers were also searched for the period. While the HSE provided the applicant with information contained in a birth register about his birth, it noted that the birth register does not contain any information about the applicant's father.
I appreciate that the applicant will be very disappointed to find that the HSE cannot find any further information about his time in the County Home. However, the remit of this Office is confined to considering whether the decision taken by the HSE on the applicant's FOI request was in accordance with the provisions of the FOI Act. In light of the explanations given by the HSE, I am satisfied that it was justified in refusing his request on the ground that the records sought cannot be found or no longer exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse, under section 15(1)(a), the applicant’s request for information as to whether his mother was with him for the duration of his stay in the County Home and for any details held relating to his father.
Right of Appeal
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.