Case number: OIC-53433-K9J9G6 (previously 190182)

Whether the HSE was justified in refusing access to parts of records relating to the applicant’s late husband’s treatment in a healthcare facility and to further records on the basis that reasonable searches had been carried out and/or such records do not exist

08 August 2019

Background

This review arises from my decision in Case No. 180433, which issued on 10 January 2019 in relation to the applicant's FOI request to the HSE of 29 July 2018. The applicant’s request has its background in her late husband's stay for respite care in a particular medical facility in 2016 and in her subsequent complaints about the care he received. She sought access to her late husband’s medical notes and files and as held by a named doctor and all notes and records created or held by the facility or its head office relating to her husband since the time of his admission, including notes made by the facility on a specified document. She also said that she wanted any email, fax or postal correspondence relating to her husband whether internally or externally sent or received since the time of his admission.

It is not necessary to describe the outcome of the decision making process on the request other than to say that the applicant ultimately applied to this Office for a review of the HSE’s decision (Case No 180433). One of the issues raised by the applicant in Case No 180433 was that the HSE/healthcare facility should hold further records covered by her request. However, the HSE had refused to grant access to such records under section 15(1)(a) of the FOI Act, which provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

This Office put a number of detailed questions to the HSE about the steps it had taken to look for records covered by the applicant’s request. In short, four further files of records were subsequently found. Because the HSE did not make any submission in relation to its searches or, if relevant, as to why certain records did not exist, I was not able to decide on whether section 15(1)(a) applied in Case No 180433. I annulled the HSE’s application of that provision. I directed it to make a fresh decision on the four additional files and to address the applicant’s description of any records or types of records covered by her request that she considers to be missing. The HSE and the applicant subsequently corresponded about this. The applicant said that, in particular, the records should include a certain doctor’s notes and a report that staff of the facility brought to a meeting with her in January 2017.

The HSE’s decision of 20 March 2019 granted full and partial access to various records. It said that the withheld records or parts of records contain no information relating to the applicant’s husband and were therefore not covered by her request and/or contain third party personal information that was exempt under section 37(1) of the FOI Act. The applicant sought an internal review on 22 March 2019, including in relation to the refusal of access to further records that she maintained should exist. The HSE’s internal review decision of 12 April 2019 granted access to two further records and affirmed its refusal of the others. It explained to the applicant why it held no further records covered by her request.

The applicant sought a review by this office of the HSE’s decision on 17 April 2019. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office and the HSE and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.

Scope of Review

This review is confined to whether or not the HSE is justified in withholding further records covered by the applicant’s request, including under section 15(1)(a) of the FOI Act.

As noted above, the request seeks access to information relating to the applicant’s late husband. I am satisfied from my examination of the records that the applicant has been granted access to all such details, including references to her husband as contained in minutes of governance meetings and in records describing the daily activities of a number of patients. I do not consider that her request extends to the rest of such records, which contain information about the general operation and administration etc., of the healthcare facility and/or the medical history of other patients.

As I said in my decision on Case No 180433, I have great sympathy for the circumstances surrounding the applicant’s request. I have carefully considered her submissions and the documents she provided to this Office during this review. However, I cannot take into account or make findings on matters such as the quality of the care given to her late husband or how her complaints or FOI requests were dealt with; neither has this Office any role in seeking answers from the HSE/the healthcare facility in relation to the applicant’s questions except insofar as they directly concern my review of the FOI decision. I must also comply with section 13(4) of the FOI Act, which provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Findings

Section 15(1)(a) - adequacy of search

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records covered by a request or that the requested records do not exist.

It is not normally the function of this Office to search for records. Furthermore, the Commissioner’s position is that the FOI Act does not require FOI bodies to indefinitely search for records, or account for all gaps that may be identified in records. It should also be noted that the Commissioner has no powers to review the standard of record keeping or to take any action if particular records have not been kept or cannot be found.

This Office’s Investigator asked the HSE to respond to the questions that she had put to it in Case No 180433 about the searches carried out for records covered by the applicant’s request. She also asked it to comment on some further matters arising from the applicant’s arguments and the contents of the various records. On 8 July 2019, the Investigator wrote to the applicant to describe the general searches that the HSE says were carried out as well as its position on the records that the applicant had said should exist. The details concerned are quite lengthy and, while I have had regard to them, I will not repeat them in this decision except for those relating to further doctor’s notes and the report brought by the facility’s staff to the January 2017 meeting.

The HSE says that the doctor has confirmed in writing that he saw the applicant’s late husband only twice. It says that all medical observations, including the doctor’s, are recorded electronically and that it has granted the applicant access to the relevant extracts on two occasions. The HSE says that the doctor was also asked to search his own diaries, his home office and his office in the healthcare facility. It says that he did so and that he has confirmed that he holds no further records. The applicant says that this cannot be true and that the notes should be retrieved and provided. In her application to this Office, she says that “basic medical practice & data requirements” should require further records to have been created.

The HSE has granted access to the doctor’s electronic notes, which it says is the only way that such observations are recorded. It has described the searches that it says have been carried out for any further medical notes that the doctor may have created. I also note its position that the doctor has carried out various searches for further records and has confirmed that he holds none. I can understand why the applicant feels that further and/or more detailed medical records should be held. However, the FOI Act is of no assistance in cases where records are not as detailed as a requester feels they should be. I am unable to identify further specific searches that should be carried out in this case. Even if further doctor’s notes exist, which may well not be the case, I am satisfied that all reasonable steps to ascertain their whereabouts have been taken. I do not believe that the FOI Act requires me to direct the HSE to indefinitely carry out general searches for records. I find that section 15(1)(a) applies.

Turning to the report brought by the healthcare staff to the January 2017 meeting, the HSE’s position is that one of the nurses present wrote the names of the attendees on the back of the report and that it was later shredded. It says that a clean copy was sent to the applicant’s family the day after the meeting. The HSE says that the healthcare facility confirms that the report discussed at the meeting is exactly the same as the clean version that subsequently issued. It also says that the staff present say that no notes were taken or records created in relation to the meeting. The applicant says that it is very strange that the HSE/healthcare facility would keep paper and electronic copies of a document that she provided to it and yet would shred an original report that it had prepared and annotated at the meeting.

Generally speaking, I would expect an FOI body to retain records provided to it by another party. Furthermore, while FOI bodies may well retain versions of documents that have been written on, I have no reason to dispute the HSE’s very clear position in this case that the particular copy of the report that the applicant is seeking no longer exists. I find that section 15(1)(a) applies.

I am also satisfied that reasonable searches have been carried out for any further records covered by the request generally. I note the details of the searches that the HSE says have been carried out and details of various records that it has released to the applicant. I am unable to identify further specific searches that should be carried out in relation to the request in general. I am satisfied that all reasonable steps have been taken to ascertain the whereabouts of any further records covered by the request that may exist and I find that section 15(1)(a) applies.

Section 15(1)(i) - records already granted

Section 15(1)(i) provides for the refusal of access to records already released to a requester where the records are available to the requester.

The HSE has withheld some records on the basis that it already released them to the applicant either in an earlier FOI process or the current one. I note that, during the review, the HSE granted access to three records that it accepted are versions rather than copies of other records which it had released. I find that section 15(1)(i) applies to the rest of the relevant withheld records. I am satisfied that they are copies of records already released to the applicant.

Section 37 - personal information

The HSE refused access to some details in the records under section 37(1) of the FOI Act, on the basis that they relate to patients other than the applicant’s late husband and comprise the personal information of such third parties. I have already found that these details are not covered by the applicant’s request in the first place. I consider that the third party information was properly redacted on that basis.  Accordingly, there is no need for me to decide whether or not they are exempt under section 37 of the FOI Act.

For the assistance of the applicant, I can say that, having examined the records, I would find the withheld details about other patients to be exempt under section 37(1) of the FOI Act, which requires the refusal of a record where access to it would involve the disclosure of personal information. I would have no reason to consider section 37(2) to require the release of the details concerned.

In considering the public interest, I could not take account of the applicant’s position that she needs “full (even irrelevant) disclosure” because of her dissatisfaction with the treatment given to her late husband and other matters. This is not a true public interest that I could have regard to for the purpose of the FOI Act. The public interest in promoting the openness and accountability of FOI bodies in relation to the performance of their functions would be served to some extent by granting access to the withheld third party personal information. However, granting access to this information would amount to a significant breach of the rights to privacy of the third parties concerned. Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Furthermore, the release of a record under the FOI Act is equivalent to its release to the world at large. Thus, I would not consider the public interest in granting access to the third party personal information to outweigh the public interest in protecting the rights to privacy of the parties concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision.

I find that the HSE is justified in refusing access to further records or parts of records covered by the request under sections 15(1)(a) and 15(1)(i) of the FOI Act.

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.

 

 

 

Elizabeth Dolan
Senior Investigator