Decision
Ms. Y & The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-200094-A0A0G8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-200094-A0A0G8
Published on
Whether the HSE was justified in refusing access to the applicant’s request for records relating to the birth of her daughter under section 15(1)(a) of the FOI Act
1 April 2026
On 29 June 2025, the applicant made a request to the HSE for records relating to the birth of her daughter at Midlands Regional Hospital Portlaoise (MRHP) in 2001, as well as a copy of medical records in respect of a procedure which the applicant had in the same hospital in 2000.
On 12 August 2025, the HSE partially granted the applicant’s request, fully releasing one record relating to the 2000 procedure and refusing access to the obstetric records under section 15(1)(a) of the Act. The HSE said that this refusal followed a thorough search of all relevant areas, both onsite and in the HSE-approved offsite facility.
On 9 September 2025, the applicant requested an internal review of the HSE’s decision to refuse access to the birth records. She acknowledged that she had received the record relating to the procedure carried out in 2000.
On 28 October 2025, the HSE affirmed its original decision, confirming that the onsite, offsite, manual and electronic searches carried out were extensive and thorough in nature. The HSE also provided some detail on where and how it would expect the missing record(s) to have been retained and stored.
On 19 January 2026, the applicant applied to this Office for a review of the HSE’s internal review decision. In her application, she provided some further information in relation to the circumstances surrounding the record and offered a suggestion as to how the Hospital might possibly have stored it. She said that she had been attending the National Maternity Hospital (NMH) throughout the pregnancy and that she had brought the NMH file to MRHP when she attended there at the time of her daughter’s birth. The applicant said that based on information she had obtained from the NMH, MRHP did not subsequently return the NMH file to the NMH or forward its own birth record to the NMH. The applicant queried whether MRHP may have put her NMH file together with the missing birth record in a different storage facility or whether MRHP may have had a different SOP on how such files were retained or stored.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions and offered her an opportunity to respond, which she duly did. While I do not intend to repeat either the HSE’s submissions or those of the applicant in full here, I can confirm that I have had regard to both for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.
##Scope of Review
The HSE has refused the applicant’s request for records under section 15(1)(a) of the FOI Act, because it considers that the requested records either do not exist or cannot be found. This review is therefore concerned solely with whether the HSE was justified in refusing to grant access to records under section 15(1)(a) of the FOI Act.
As the applicant has not contested the HSE’s decision with regard to the 2000 medical procedure, this Office’s review will solely focus on the records relating to the birth of the applicant’s daughter.
##Preliminary Matters
In correspondence with this Office, the applicant expressed concern that the HSE’s statement that the medical records she requested are likely to have been misfiled or misplaced gives rise to them being viewed and/or used by third parties. I would like to remind the applicant that this Office has no role in adjudicating on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is confined to reviewing the HSE’s decision on the applicant’s request for records.
Section 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and to the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 said that its position is that these records should exist but that they cannot be found. The HSE said that during its searches it located other maternity/birth records from the year in question but that those requested by the applicant were not among these files. The HSE added that, in line with its Records Retention Policy, Maternity Records are kept for the lifetime of the patient plus eight years after death and that, in accordance with this policy, these records should not have been destroyed.
The HSE officer making the submissions to this Office said that they personally went to the HSE-approved off-site facility at St. Fintan’s Hospital Campus, Dublin Road, Portlaoise, where all maternity files are stored. According to the officer, both they and a colleague carried out searches at this facility. The HSE explained that maternity charts are filed according to the year of birth and then in numerical order. The HSE said that it is satisfied that it has the applicant’s correct maternity chart number but that her chart is not in the place that it should be. The HSE said that, in an effort to locate the chart, it searched the whole year of 2001, along with 2000 and 2002 records, in case it had been misfiled.
The HSE noted that the applicant made a previous FOI request for these records in 2006. The HSE officer said that they also carried out searches for the FOI file to see if a copy of these records existed. According to the HSE, under the National Record Retention Policy that was in place at that time, records relating to FOI requests were to be retained for a maximum of seven years. The HSE said that it can confirm that these 2006 FOI records have been shredded as per the Policy.
The HSE said that searches were carried out manually by hospital record number. According to the HSE, there would be no reason to carry out any searches by name or by keyword as the records were in hard copy format.
The HSE concluded that it is likely that the records have been misfiled/misplaced. According to the HSE, given the age of the records and that they were already missing in 2006, it is satisfied that all relevant searches have been carried out. The HSE also said that, given the age of the records, there are no reasons for other individuals to be consulted. According to the HSE, the applicant is not attending any clinic that these files would be used for and there are no queries on these files at this stage, apart from the FOI request. The HSE said that, as nobody would be using these files currently, they would be expected to be in storage with the other maternity charts for that year.
The HSE addressed the applicant’s point regarding the NMH file that she said she brought to MRHP at the time of the birth. The HSE said that it was not aware from the initial request for medical records that there were NMH Obstetric records with these records. The HSE said that, in light of this new information, it can confirm that if this were the case, the NMH notes would be filed within the MRHP Maternity chart. According to the HSE, the reason for this is that the chart has to be filed in accordance with MRHP’s numbering system. The HSE said that all maternity records from this time are held in the same storage facility and that the same retention policy applies. The HSE said that the searches to be carried out would be the same regardless of this new information.
Finally, the HSE said that it was aware of a discrepancy concerning the spelling of the applicant’s name from the initial request for records but that the searches were the same regardless. The HSE reiterated that it is satisfied that it has the applicant’s correct file number but says that the file itself cannot be found. The HSE said that maternity files are not kept alphabetically by name.
In line with our procedures, the Investigating Officer provided the applicant with details of the HSE’s submissions and gave her the opportunity to make submissions of her own in response. The applicant responded to the HSE’s submissions, expressing frustration and disappointment with what she called the HSE’s failure to safeguard the medical records.
The HSE’s position is that it has carried out all reasonable searches and that, while the records in question should have been retained in line with its record retention policy, they cannot be located.
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 are known to have existed cannot be found. 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.
I understand how important these records are to the applicant and appreciate her frustration that the HSE has been unable to locate them for her. Neverthless, having considered the HSE’s submissions concerning its record management policies in respect of the kind of records requested by the applicant and the searches it says it has undertaken to locate them, and in the absence of any evidence that further searches ought to be carried out, I am satisfied that the HSE has taken all reasonable steps to locate the records sought by the applicant. I therefore find that the HSE was justified in refusing the applicant’s request under section 15(1)(a) of the Act.
##Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request for access to records relating to the birth of her daughter at Midlands Regional Hospital Portlaoise in 2001, under section 15(1)(a) of the FOI Act, on the basis that no such records can 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.
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Mary Connery
Investigator