Case number: 180497
15 April 2019
On 8 June 2018 the applicant submitted a request to the HSE for a copy of all her psychiatric records held by a named hospital and a named community mental health centre dating from 1996 to the present day.
On 18 July 2018 the HSE issued a decision in which it stated that it had decided to part-grant the request. It refused access to the first of two volumes of records, comprising records dating from 1996 to 2016, under section 15(1)(a) on the ground that the records could not be found. It released the majority of the pages held on Volume II, withholding six pages in full and 48 pages in part on the ground that the release of the withheld information would involve the disclosure of personal information relating to third parties.
On 10 October 2018, the applicant sought an internal review of that decision. The HSE failed to issue an internal review decision within the statutory time-frame and on 14 November 2018 the applicant sought a review by this Office. Following correspondence with this Office, the HSE issued its effective position to the applicant, in which it affirmed its original decision. On 27 November 2018, the applicant informed this Office that she wished the review to proceed.
During the course of this review, it became apparent that the HSE had withheld 13 additional pages pertaining to Volume II of the applicant’s psychiatric records. Following correspondence with this Office, the HSE released those records to the applicant.
The HSE also provided this Office with the details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed her of her view that the HSE was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided a further submission to this Office and having regard to that submission I consider it appropriate to conclude this review by way of a formal, binding decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. 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. I have also had regard to the contents of the records held on Volume II of the applicant's file.
The scope of this review is concerned with whether the HSE was justified in refusing access to Volume I of the applicant’s psychiatric records under section 15(1)(a) of the FOI Act on the ground that the records sought cannot be found and in refusing access to certain information contained in the records held on Volume II under section 37.
Section 15(1)(a) – “Search Issues”
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.
The HSE’s position is that Volume I (1996 -2016) of the applicant’s psychiatric records appears to have been misfiled. In its submission to this Office, the HSE provided details of the searches conducted to locate the records sought and the record storage practices within the region's Mental Health Service. As this Office had already provided the applicant with those details, I do not propose to repeat them in full here. In short, the HSE stated that Volume I would comprise a closed medical file and noted that such files are archived in accordance with the terminal digit system (a system of filing that relies on the last two digits of the patient's unique identifier).
It identified the location where the file ought to have been filed and three other relevant locations. It confirmed that there is no evidence that the applicant’s file has been destroyed and that it has been logged as missing. It explained that, in the circumstances, all locations were searched using the Waterford Mental Health Service misfile procedure, which involves a search of one hundred files on either side of the shelving where the file should have been filed and, in the event that this search is unsuccessful, a further search of the shelves above and below where the file should have been filed.
In her submissions to this Office, the applicant referred to a complaint she had made to the relevant hospital and suggested that Volume I of her psychiatric records is linked to/held with her complaint file and was accessed by the Director of Nursing. In response to queries from this Office, the HSE stated that the Complaint’s Officer had confirmed that she holds only the applicant’s complaint file. It further stated that the Patient Services Manager had confirmed that the applicant’s psychiatric records were not required as part of the complaints process and, as such, were not at any time requested or accessed by the Complaints Officer or the Director of Nursing at the hospital.
It is naturally of great concern to the applicant that the HSE cannot find a file comprising a substantial number of her psychiatric records. While it is very unfortunate that the records cannot be found and while I can fully understand the applicant’s frustration and disappointment, the role of this Office is confined to determining whether the HSE has carried out all reasonable steps to locate the records. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.
Having considered the details of the searches undertaken and the procedure surrounding the complaints process, 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 Volume I of the applicant’s psychiatric records on the ground that they cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The HSE has indicated to this Office that it continues to search for the records sought. If, at some stage in the future, the HSE locates the relevant records, I expect it to immediately notify the applicant of their availability.
Section 37 – Personal Information
It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent to disclosure of exempt material. This means that the description which I can give of the withheld information and of the reasons for my decision is somewhat limited.
Section 37(1), subject to the other provisions of section 37, provides for the mandatory refusal of a request where access to the records concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information. As such, where section 37(7) is found to apply, joint personal information is exempt under section 37(1).
Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information.
Having reviewed the records at issue, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) applies to such information.
Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.
Furthermore, section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 (the Rotunda case). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
While I accept that there is a public interest in both promoting openness and accountability of the HSE and in the applicant accessing personal information relating to her, the release of the withheld information would also involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. Having regard to the nature of the information concerned, I am satisfied that it does not. In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.
Consequently, I find that the HSE was justified in its decision to refuse access to the information withheld from the records contained in Volume II of the applicant’s psychiatric records under section 37 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to Volume I of the applicant’s psychiatric records under section 15(1)(a) of the FOI Act on the ground that the records sought cannot be found after all reasonable steps to ascertain their whereabouts have been taken, and to withhold certain information contained in Volume II of her records under section 37(1) of the FOI Act.
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.