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Ms P and Health Service Executive (FOI Act 2014)

Case Number: 160495

Whether the HSE was justified in its decision to refuse access to the applicant's pre-May 2006 medical records on the basis that these records had already been released to the applicant and are available to her, and to refuse access to further post-May 2006 medical records, 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 19 October 2015, the applicant made a request to the HSE for a copy of all records relating to her. She included in her request a broad and detailed list of matters relating to her engagements with the HSE, including details of medical tests and procedures, administrative matters, correspondence, birth records etc. On 28 October 2015, the HSE wrote to the applicant asking her to clarify which services she had had attended, the relevant location of those services and the approximate dates she attended. In response, the applicant provided details of her past addresses. She went on to include further matters that she had omitted to include in her original request, including matters falling within the remit of the Department of Social Protection.

On 4 December 2015, the HSE again wrote to the applicant and stated that her response did not contain sufficient particulars to allow for the identification of all of the records sought. It added, however, that it was aware from other requests she had made that she had previously received records from Roscommon Community Services and from Portiuncula Hospital Ballinasloe (the Hospital) and it forwarded copies of the applicant's request to the relevant FOI Liaison Officers. It also offered to forward a copy of the request to the Department of Social Protection.

On 26 May 2016, the HSE issued a decision granting access to 134 pages of medical records held by the Hospital relating to the applicant. The records in question dated from 2006 onwards. On 28 August 2016, the applicant sought an internal review, expressing the view that all not all her records had been released. She noted that a copy of her FOI request and related correspondence were not among the records released. On the 9 September 2016, the HSE provided the applicant with a copy of her request and the HSE's decision, in addition to copies of correspondence between the HSE and the applicant regarding to her request. It noted that the applicant's request for internal review was outside the relevant statutory time-frame but undertook to further consider the applicant's request if she provided further information regarding the services or hospitals attended.

On 28 October 2016, the applicant sought a review by this Office of the HSE's decision. She included a copy of a 34 page handwritten letter addressed to, among others, the HSE's decision maker. While the letter covered a wide range of issues, the applicant essentially indicated that she was seeking access to all records of any kind that might exist in relation to any and all engagements she may have had with the HSE and other services since birth.

During the course of this review, the HSE stated that it did not release pre-May 2006 records relating to the applicant as they had already been released following a previous FOI request made in April 2006. This Office reviewed the decision made by the HSE on that request and found that the HSE was justified in refusing to release further relevant records on the ground that no such records existed or could be found after all reasonable steps to ascertain their whereabouts had been taken.

I note that Ms Lydia Buckley of this Office wrote to the applicant on 10 April 2017, and informed the applicant of her view that the HSE was justified in refusing access to her pre-2006 records under section 15(1)(i) of the FOI Act on the ground that the records were previously released to her in 2006. She also provided the applicant with details of the searches undertaken by the HSE to locate her post-2006 medical records, and informed the applicant of her view that the HSE was justified in deciding that no further relevant records exist or can be found.

I am satisfied that this review should now be brought to a conclusion by way of formal, binding decision. In conducting this review, I have had regard to the communications between the HSE and the applicant, and to the correspondence between this Office and both the HSE and the applicant.

Scope of Review

While public bodies are obliged to assist, or offer to assist, requesters in making FOI requests, there is a corresponding onus on requesters, under section 12(1), to provide sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. The HSE has responsibility for providing a wide range of public health and social care services. The applicant submitted an extremely broad and detailed request to the HSE, without providing specific details as to when or where she may have availed of the various services offered. It seems to me that by expecting the HSE to conduct an organisation-wide trawl of all of its records in an effort to identify any and all records relating to her, the applicant did not provided sufficient particulars to enable all of the records sought to be identified by the taking of reasonable steps.

In an effort to assist the applicant, the HSE focused its search on records held by the Hospital as it was aware that the Hospital held relevant records. It also offered to consider the applicant's request further if she provided more specific information about the services she may have availed of but she did not do so. Therefore, I have limited my review to whether the HSE has identified and released all relevant records held by the Hospital.

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the applicant's pre-May 2006 medical records on the basis that these records had already been released to the applicant and are available to her, and to refuse access to further post-May 2006 medical records, on the basis that no further records exist or can be found.

Analysis and Findings

Pre-May 2006 Records
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned. The applicant has not argued that the records released previously are not available to her. Having regard to decision of this Office to affirm the decision of the HSE in relation to the applicant's previous request, I am of the view that all pre-May 2006 records have been released and are available to the applicant, and that the HSE is justified under section 15(1)(i)(i) to refuse to release these records again in response to the applicant's current request.

Post-2006 Records
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 such cases 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, and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for 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 it has taken all reasonable steps to locate the records at issue.

In response to a request from this Office, the HSE provided comprehensive details of the searches taken to locate the applicants post-2006 medical records. 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, I can confirm that I have had regard to them for the purposes of this review.

In summary, the HSE stated that it conducted both manual and electronic searches of all files and locations where it might expect to find relevant records. This included a search of the Hospital's medical records library and an off-site storage facility. The records in the applicant's medical chart, which was photocopied and released, were crosschecked with records on the laboratory and radiology systems, in order to ensure that all records held by the Hospital had been released.

Having carefully considered the HSE's submission, I am satisfied that it has carried out all reasonable searches to locate records relevant to the applicant's request. I accordingly find that the HSE was justified in deciding, under section 15(1)(a) of the FOI Act, that no further records coming within the scope of the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision in this case.

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.


Stephen Rafferty,
Senior Investigator