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Ms D and the Health Service Executive (FOI 2014)

Case Number: 160033

Whether the HSE was justified in refusing a request for access to further complaints relating to the access to the MRI service in Cork University Hospital, on the basis that no more records exist or can be found

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

On 9 October 2015, the applicant made a request to the HSE for information relating to the MRI service in Cork University Hospital (CUH), including "Complaints received in respect of access (or lack thereof) to the MRI service ... from January 2010 to date".

In its decision of 13 November 2016, the HSE provided the applicant with redacted printouts of two complaints, CC 144 and CC 145, which were logged on an internal electronic database (QPulse). The redactions comprised personal information relating to third parties. The HSE also stated that it was refusing access to other records under section 37(1) of the FOI Act, on the basis of that they constituted third party personal information. It did not provide any description of the records refused under section 37(1). During the course of this review, it emerged that one of the records to which access was refused was the original letter of complaint relating to the complaint logged as CC 144 on the Q-Pulse database.

On 3 December 2015, the applicant sought an internal review of the decision on that part of her request relating to complaints received on the ground that she was aware of other complaints that emanated from both patients and neurosurgeons, details of which had not been released. She stated that she was was not seeking access to information in relation to the identity of patients but that she required access to each complaint and the date it was made.

On 8 January 2016, the HSE affirmed the original decision. However, it also released two further records relating to a complaint that had been made after the applicant's request. On 19 January 2016, the applicant sought a review by this Office of the HSE's decision.

During the course of the review, following a number of exchanges of correspondence with this Office and on foot of information provided by the applicant to this Office, the HSE carried out searches of a number of staff email accounts and located four additional records, which it released to the applicant on 10 October 2016.

Ms Buckley of this Office subsequently emailed the applicant on 17 October 2016 and provided details of the searches conducted by the HSE for relevant records. She informed the applicant of her view that the HSE was justified in deciding that no further records relating to her request exist or can be found, having taken all reasonable steps to ascertain their whereabouts. The applicant did not agree with this view. Accordingly, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE.

 

Scope of Review

During the course of this review, it emerged that a written letter of complaint to the CUH regarding the access to the MRI service in the CUH, dated 3 June 2011, and acknowledgement of same, were held in relation to the complaint logged as CC 145 on the Q-Pulse database. The HSE stated that it had refused access to these records in its original decision under section 37(1) of the FOI Act, on the ground that they constituted third party personal information. However, this was not apparent from the original decision which, as I have explained above, did not identify or describe the records being refused in any detail.

However, as the applicant has indicated that she is merely seeking access to the complaint and the date it was made and not details of the identity of patients, and as the letters in question form part of the complaint logged as CC 145, I have not considered whether the records in question should be released. Furthermore, I have not considered the personal information redactions made to the records already released. The applicant has made it clear that her concern relates to whether details of all complaints have been released.

Accordingly, this review is concerned with solely whether the HSE was justified in refusing access to further records of complaints received regarding access to the MRI service in the CUH for the period at issue on the ground that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

 

Preliminary Matters

It is a matter of some concern to me that the time taken to conduct this review was prolonged by a significant delay on the part of the HSE in providing this Office with particular information that was necessary for the review to proceed. On 30 May 2016, Ms Buckley of this Office asked the HSE to confirm that the email accounts of six staff members were searched for relevant records and to provide details of these searches. After a delay of nearly five months, the HSE eventually provided the requested details on the 26 September 2016. This is an unacceptable delay, particularly given that this Office is required, in so far as practicable, to complete reviews within four months. I expect the HSE to take appropriate measures to ensure that future requests for information made by this Office are responded to in a timely fashion.

 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found, after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases 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 the reasoning used by the decision maker in arriving at his/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 FOI body, on the basis of which the FOI body concluded that they have taken all reasonable steps to locate the records sought.

On 27 April 2016, the HSE provided this Office with details of the record management practices that applied to complaints about the access to the MRI service at the CUH and which applied during the relevant time. The HSE also provided details of the searches undertaken to locate records relating to complaints about the MRI service in the CUH. As I have outlined above, Ms Buckley of this Office has already provided the applicant with the details of these searches. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purposes of this review.

In summary, the HSE stated that formal complaints are forwarded to the Risk Management Department and logged on two electronic databases, the Q-Pulse system and the Risk Management Database, and then responded to by the appropriate staff. Informal complaints are logged only on the Risk Management Database. The HSE conducted electronic searches of these databases and two electronic logs of complaints, CC 144 and CC 145, were located and released to the applicant along with the original decision.

Manual and electronic searches were also conducted by staff in the departments and offices most likely to hold relevant records including the Office of the Chief Executive Officer, the Office Radiology Department Manager, the Risk Management Department, and the Office of Operations Manager, and the contracted service provider who provides the MRI service.

The HSE stated that a complaint from a consultant, rather than member of public, regarding a lack of access to services would be would be considered a risk to patient safety and the risk assessment process would be followed. The consultant would complete a risk assessment form and this would be reviewed initially at department level for available control measures to be out in place. If it not deemed possible to adequately control for the risk at this level, it can be escalated via the risk assessment procedure and ultimately it would be placed on the hospital risk register if warranted.

On 30 May 2016, Ms Buckley of this Office brought the email exchange provided by the applicant to the attention of the HSE, and asked the HSE to confirm that the email accounts of the relevant staff were searched for relevant records and to provide details of these searches. A copy of that email was forwarded to the HSE in order to assist it in this process. The author of the email, a neurosurgeon within CUH, refers to "previous correspondence regarding out of hours MRI" and to a delay in the management of a patient because of "the unavailability of out of hours MRI".

After a delay of nearly five months, during which a notice under section 45 of the FOI Act was issued to the HSE, it provided details of the relevant searches on the 26 September 2016. As noted previously, the searches of the email accounts of the six staff members engaged in the email exchange located four new emails and these were released to the applicant. It is noteworthy that the HSE had previously released a number of records on foot of a request for copies of the prior correspondence referred to in the email. The HSE has stated that it is uncertain whether the additional emails found comprise a complaint or a wider discussion on the issue of the availability of out of hours MRI.

The applicant is of the view that further records of complaints should exist and in a letter to this Office, dated 18 October 2016, she suggested further searches which she maintained ought to be undertaken to locate the records. In particular, the applicant references one of the emails released by the HSE in which a consultant refers to numerous emails from him and others in the past. In a follow-up query with the HSE on this matter, the HSE stated that the consultant in question had carried-out searches for relevant emails and had provided the emails that he was able to find. The HSE also commented that the reason why some emails were found on some of the email accounts, and not on others, is that staff sometimes delete emails which are deemed no longer necessary to retain in order to fee up space in their email accounts.

The FOI Act does not require FOI body to conduct every search that an applicant deems necessary. Rather, it requires the body to take all reasonable steps to ascertain the whereabouts of the requested records. It seems to me that a difficulty arises in respect of what each of the parties consider to be a complaint. The HSE has outlined its process for recording complaints regarding access to the MRI service. The fact that it may not regard particular correspondence with a member of the staff of the CUH as a complaint is not a matter that this Office may consider. This Office has no role in examining the administrative actions of public bodies.

Having regard to the details of the searches taken by the HSE and the applicable record management practices, I am satisfied that all reasonable steps have been taken to locate the complaints sought by the applicant. I find, therefore, that the HSE was justified in its decision to refuse access to further records on the ground that no further records exist or can be found, after all reasonable steps have been taken to ascertain their whereabouts.

 

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 under section 15(1)(a) of the FOI Act.

 

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty