Decision
Ms. Y & Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-159500-W7G5B7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159500-W7G5B7
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant on the grounds that no further records exist or can be found
30 July 2025
On 21 January 2025, the applicant made a request to the HSE for access to her notes/healthcare record for all her admissions and contacts with a particular section of University Hospital Waterford (UHW) in 2019. Specifically, she said she is seeking a copy all correspondence written to and from healthcare professionals within a particular department at UHW, correspondence written to a named GP, any correspondence to any member of a particular medical team at another named hospital, as well as a copy of all letters/correspondence documents relating to her patient number held on a specific shared drive in UHW.
On 18 February 2025, the applicant made a request for internal review as no decision had issued by the HSE within the timeframe provided in the FOI Act. On 4 March 2025, the HSE released a copy of the applicant’s Healthcare Record and Laboratory Reports, with certain information redacted under section 37(1) of the Act.
On 4 June 2025, the applicant applied to this Office for review of the HSE’s decision. She said she had not been provided with the records she sought that are stored on the shared drive in UHW. The applicant did not contest the redactions made within the records released to her.
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 outlined above and to the submissions received by this Office. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records sought by the applicant that she claims are stored in a specific folder of a shared drive in UHW on the grounds that no further records exist or can be found.
In her application for review to this Office, the applicant stated that, in addition to the healthcare records she had requested, she had also asked to know who outside the particular department she had been attending had accessed her confidential reports. I note that the applicant did not seek access to any such records as part of her original request to the HSE. I cannot examine this matter as part of this review as this Office does not have jurisdiction to consider the release of any records that the applicant did not seek in her original request. It remains open to the applicant to make a separate FOI request to the HSE if she wishes to seek access to any such records.
Section 15(1)(a)
Section 15(1)(a) provides that an FOI body may refuse to grant a request when 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 is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the HSE outlined that the applicant’s healthcare record had been retrieved, copied and supplied to her as requested. The HSE went on to say that when the applicant had maintained that further records ought to exist, it conducted further searches, reaching out to all relevant staff, including the applicant’s Consultant and associated secretaries, the hospital’s IT Manager, and representatives of relevant hospital departments, among others.
In its submissions, the HSE addressed the applicant’s claim that medical documents belonging to her are held in electronic form on a shared drive on UHW’s computer system. It explained how this shared drive operates, who can upload records to it and where individual staff members would store any such records on the drive. The HSE also explained that its IT Department had carried out an extensive search of the shared drive, which had resulted in finding only one record belonging to the applicant, relating to a previous appointment outside of the scope of this request. The HSE stated that these searches were carried out within all UHW sub-folders of the shared drive using the applicant’s patient number as the keyword search. According to the HSE, the applicant’s Consultant and associated secretaries confirmed that there are no records belonging to her on the shared drive and the IT Manager stated that no trace of relevant records can be located. Despite the fact that a particular dictation and document storage system was introduced after the period within the scope of the applicant’s request, the HSE said that this system was also checked but no relevant records were found. The HSE concluded that no further relevant records exist on the shared drive or elsewhere and that all existing records have been provided to the applicant.
Nevertheless, the applicant has consistently maintained that records relating to her are stored in one specific folder contained within the UHW shared drive. The HSE informed the applicant that she would need to contact another section of the HSE in relation to any information held on this folder. The HSE said that the applicant was referred to another section of the HSE in this instance because UHW does not have access to this folder as it is a storage space on the UHW system owned by a separate HSE body that is not a part of UHW. I note that as part of its submissions to this Office, the HSE provided a copy of a letter it had sent to the applicant on 12 June 2025 in relation to this matter, in which it said that UHW had searched the fileserver for the shared folders it has access to and that the shared folders referred to by the applicant cannot be accessed by UHW. This letter suggests that any request for information relating to these folders would need to be routed through the respective FOI officer for the particular HSE service that has access to those folders.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of all relevant records coming with the scope of the applicant’s FOI request. As I understand it, the HSE has not searched the specific section of the share drive identified by the applicant in her request as UHW does not have access to this folder. It seems that access to the folder is controlled by another part of the HSE. The applicant’s FOI request was managed and processed by UHW and as noted above it released a copy of the applicant’s Healthcare Record to her. When it became evident that certain parts of the shared directory identified by the applicant were not controlled by UHW, but by another part of the HSE, it seems to me that no efforts were made to transfer that part of the applicant’s request to the relevant area within the HSE that has access to the relevant folder.
The HSE is a single FOI body. While I appreciate there are many parts of the HSE and that it may not be possible for one particular area to process all elements of an applicant’s request, when it became apparent that another area within the HSE may hold relevant records, i.e. in this case, any records contained within that part of the shared directory that UHW cannot access, I would have expected the HSE to have made arrangements for the relevant part of the HSE to process that part of the applicant’s request that UHW could not process.
In the circumstances outlined above, I cannot conclude that the HSE has taken all reasonable steps to ascertain the whereabouts of all records requested by the applicant. Accordingly, I annul the HSE’s effective decision to refuse access to further records falling within the scope of the applicant’s request under section 15(1)(a) of the Act and I direct the HSE to consider the applicant’s request afresh in relation to any relevant records held within the specific shared folder(s) referenced in the applicant’s request. The applicant will have a right to an internal review and to seek a review by this Office if necessary.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision and direct it to undertake a fresh decision-making process in respect of any relevant records contained within the shared folder, in accordance with the provisions 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.
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Richard Crowley
Investigator