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Mr X and the Health Service Executive (FOI Act 2014)

Case Number: 160230

Whether the HSE was justified in refusing the applicant's request for further records of Orthopaedic business meetings on particular topics on the grounds that no further records exist or can be found after all reasonable steps have been taken to locate them

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the HSE on 9 February 2016 for all records relating to his deceased son, and for copies of minutes of all Orthopaedic business meetings from 25 December 2003 to date relating to "DVT Prophylaxis, clots, Ambulatory Trauma, Anti-coagulant dispensing and venous thrombo-embolism prophylaxis in ambulatory trauma patients". For the purposes of this decision, all references to "applicant" may be read as references to the applicant or his representative, as appropriate.

In its decision of 2 March 2016, the HSE released a number of records relating to the applicant's deceased son, and refused the request for records of minutes on the ground that no further relevant records existed other than the extracts of the minutes of meetings from 10 October 2012 to 9 December 2014 that had been issued to him on 1 February 2016 on foot of a separate request.

On 11 March 2016 the applicant sought an internal review of the HSE's decision. The HSE issued an internal review decision on 4 May 2016 in which it released additional records to the applicant relating to his son. It also affirmed its decision to refuse access to further minutes. The applicant sought a review by this Office of the HSE's decision on 13 May 2016, seeking access to the Orthopaedic business meeting records. In a letter of 3 June 2016 to this Office, he stated that he was seeking access to the relevant minutes from 4 October 2004 to 10 October 2012 and from 9 December 2014 to the date of his request.

During the course of the review, Mr Art Foley of this Office engaged in a number of exchanges of correspondence with both the applicant and the HSE concerning the possible existence of additional records. As a result of this, the HSE re-examined the available Orthopaedic business meeting minutes to confirm that all relevant extracts from the minutes had been released to the applicant. Three additional extracts were released on foot of this examination, although the applicant has stated that he had previously received one of those extracts on foot of his previous request. By letters dated 12 July 2016 and 22 August 2016, Mr Foley provided the applicant with details provided by the HSE of the searches undertaken for relevant records.

I believe it is appropriate at this point to conclude the review by issue of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the HSE, and to the correspondence between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing to release further minutes of Orthopaedic business meetings for the relevant periods relating to the matters identified by the applicant on the ground that no further records exist or can be found after all reasonable steps have been taken to locate them.

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 concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. It is not this Office's function to search for records. Rather, our role in such cases is to review the decision of the public 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 the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.

It should be noted that it is possible for this Office to find that a public body has conducted all reasonable searches, even where records that are known to exist cannot be found. It would not generally be reasonable for a public body to be required to continue searching indefinitely for records. It is important to note also that the Commissioner's remit does not extend to adjudicating on how FOI bodies carry out their functions generally, or to investigating complaints against public bodies. Furthermore, while the FOI Act provides for a right of access to existing records held by FOI bodies, it does not provide for a right of access to records that a requester considers ought to exist even if it is acknowledged by an FOI body that such records should exist.

In submissions to this Office, the HSE provided details of the searches it undertook to locate the Orthopaedic business meeting minutes sought by the applicant. As set out above, Mr Foley of this Office provided the applicant with these details. Having regard to the information provided during that correspondence, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purposes of this decision.

In essence, the HSE stated that it has searched the Orthopaedic Directorate based at a named hospital (Hospital A) for records within the scope of the applicant's request. Searches were completed both manually and electronically. Staff were also contacted during the search for records and requested to search their own files and emails for other minutes of Orthopaedic meetings. All staff who attended the Orthopaedic business meetings at issue were also requested to search their records. The resource room in another named hospital (Hospital B) was also searched for records within the scope of the applicant's request. The HSE located and considered 29 copies of minutes of Orthopaedic business meetings dated between 2012 and 2016 in fulfilling the applicant's request and released relevant extracts from these minutes to the applicant.

The HSE stated that it was unable to locate records of Orthopaedic business meetings from between 2003 and 2012. It explained that while meetings occurred during this time period, there was no process in place in relation to the conduct of meetings, including the manner in which minutes of the meetings were taken or stored. The HSE stated that it requested that persons who would have attended the meetings search their own records, but no minutes dating from between 2003 and 2012 were located on foot of these searches.

The HSE further explained that a formal process was introduced in 2012 on the holding of Orthopaedic business meetings, whereby the minutes were filed with the Orthopaedic Directorate based in Hospital A. As such, where Orthopaedic business meetings were held in Hospital B, the HSE stated that the minutes of these meetings would have been filed with the Orthopaedic Directorate in Hospital A. The HSE stated that as the Orthopaedic Directorate was based in Hospital A during the relevant time period, it does not consider it likely that the relevant records would be found in another location.

Having considered the submissions of both parties, and the steps taken by the HSE to locate records, I am satisfied that the HSE had taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the HSE was justified in its decision to refuse access to further minutes of Orthopaedic business meetings under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

For the sake of completeness, I would add that during the course of this review, the applicant expressed his dissatisfaction with the record management practices of the HSE, in particular the fact that older minutes of Orthopaedic business meetings could not be located. The applicant was also unhappy that additional extracts were only located during the course of this review. The FOI Act requires an FOI body to take all reasonable steps to locate records sought by an applicant under the Act before it can refuse the request on the ground that the records sought cannot be found or do not exist. The failure to do so can cause serious frustration for the parties involved and it can prolong the FOI process unnecessarily. It can also undermine an FOI body's assertion that all reasonable searches have been performed for records. It is very important that FOI bodies have appropriate records management practices in place to allow them to readily identify and locate records sought under the FOI Act. I would also urge the HSE to ensure that all reasonable steps are taken to locate relevant records in all future requests where it is considering a refusal under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse access to further records coming within the scope of the applicant's FOI request under section 15(1)(a) 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.

Stephen Rafferty
Senior Investigator