Whether the HSE was justified in refusing access to certain parts of the applicant’s psychiatric records under section 15(1)(a) on the ground that the records sought do not exist or cannot be found
18 December 2019
In a request dated 25 March 2019 to the HSE, the applicant sought access to all of her psychiatric records. It appears that during the processing of the request, the HSE had a telephone conversation with the applicant wherein she stated that she was looking for a video recording allegedly taken in the early 1990s whilst she was a patient at a named hospital.
In a decision dated 10 April 2019, the HSE refused the request under section 15(1)(i) on the ground that the records had previously been released to the applicant on three occasions and she confirmed to the HSE that she had a copy of same. The HSE also refused access to the video recording under section 15(1)(a) on the ground that it does not exist or cannot be found. In her request for internal review, the applicant acknowledged receiving some records but argued that they were incomplete as there was no reference to the video recording or an alleged sexual assault. The HSE affirmed its original decision. On 27 August 2019, the applicant sought a review by this Office of the HSE’s decision in relation to records concerning the alleged sexual assault and in relation to the video recording.
During the course of this review, the applicant confirmed that she had previously received her psychiatric records from the HSE. Subsequently, this Office provided the applicant with details of the HSE’s submission wherein it outlined the searches it undertook for the relevant records and of its reasons for deciding that no further relevant records exist. In her reply, the applicant indicated she wished to continue with the review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both the applicant and the HSE on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
The scope of this review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for access to records relating to an alleged sexual assault and a video recording allegedly taken in the early 1990s whilst she was a patient at a named hospital on the ground that the records sought do not exist or cannot be found.
In her application for review, the applicant stated that she was appealing the internal review decision and seeking access to all correspondence from the named hospital relating to an alleged sexual assault and a video recording. The applicant made a multifaceted complaint to the HSE in 2012, which included a complaint regarding a video record and also an allegation of sexual assault. The HSE conducted an investigation into the applicant’s complaints. As a result of the investigation, the HSE engaged in correspondence with the applicant on the subject matter of her complaints. I am of the opinion that records arising from the investigation in 2012, such as correspondence between the applicant and the HSE, are separate and discrete to the applicant’s FOI request for access to her psychiatric records and therefore outside scope. The HSE confirmed that records relating to the complaint are not held on the applicant’s psychiatric file. It is open to the applicant to make a fresh FOI request to the HSE seeking access to the records relating to the complaint if she wishes.
As outlined to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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.
In submissions to this Office, the HSE provided details of searches conducted and the reasons why the HSE could not find the records sought by the applicant. 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 said that for a short period during the early 1990s some video recordings were used when Trainee Psychiatrists were working with clients, with their client’s permission. The HSE said recordings were viewed for note-taking and learning purposes by trainees. Recordings were then deleted immediately afterwards and the same video tape was re-used (i.e., recorded over) for the next client. The HSE said that these video recordings were not stored, archived or copied.
The HSE outlined that it carried out searches on the applicant’s medical file at the hospital during the 2012 investigation. The video was allegedly recorded of the applicant whilst an in-patient at the hospital, however the content purportedly relates to her psychiatric care. It stated that no reference to the video recording was found. It stated it also conducted searches on the applicant’s psychiatric file. It said that there was no video recording nor was there a reference to a video recording in the applicant’s psychiatric file. It further stated that the hospital does not hold any video records in its primary or secondary storage. The HSE stated that if the video recording had existed then in all likelihood it was destroyed as per practice outlined above.
The HSE further outlined that during the investigation into the allegation of sexual assault, the relevant mental health services provider carried out searches on the applicant’s psychiatric clinical notes. The HSE said it found no reference, comment of allegation of sexual assault or abuses regarding a member of staff at the hospital or the mental health services provider. It also said that during that investigation, the hospital carried out searches and concluded that there was no reference to an incident of assault recorded on the applicant’s medical file.
Having considered the HSE’s description of the searches undertaken and the reasons why it does not hold the records, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the HSE was justified in refusing access to any additional records on the ground that no further relevant 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 FOI Act, I hereby affirm the decision of the HSE to refuse the applicant’s request for access to certain psychiatric records under section 15(1)(a) on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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.