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

Case Number: 170329

Whether the HSE was justified in its decision to refuse access to a medical referral letter under section 15(1)(a) on the ground that it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

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 6 March 2017, the applicant made a request to the HSE for a copy of her patient file that was held by her GP. On 26 April 2017, the HSE issued a decision in which it granted the request subject to the redaction of certain personal information relating to third parties. The applicant sought an internal review of the decision on the ground that a specified referral letter from her GP to Waterford University Hospital was missing and ought to have been on her file. On 21 June 2017 the HSE issued refused access to the record in question on the ground that it could not be found. The applicant subsequently sought a review by this Office of the HSE's decision.

In an email dated 13 September 2017, Ms Hannon of this Office provided the applicant with details of the searches undertaken by the HSE in an effort to locate the record and informed the applicant of her view that the HSE was justified in deciding that the record cannot be found. Ms Hannon invited the applicant to make a further submission and also offered her an opportunity to withdraw her application for review. By email dated the same day, the applicant confirmed she wanted the review to proceed.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting my review I have had regard to the correspondence between the HSE and the applicant as outlined above and to the correspondence between this Office and both the applicant and the HSE on the matter.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access to the referral letter sought under section 15(1)(a) on the grounds that the record cannot be found.

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 role of this Office 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 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 the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.

It is important to note that the FOI Act does not require a public body to continue searching indefinitely for records that cannot be found and this Office can conclude that a public body has conducted reasonable searches even where records that are known to have existed cannot be located. Nevertheless, in such circumstances, I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.

As I have outlined above, Ms Hannon of this Office provided the applicant with details of the searches undertaken for the records sought. She also provided her with an account, supplied by the HSE, of how referral letters are made and stored in the GP's surgery. 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 decision.

In summary, the HSE stated that it is not the policy of the surgery to destroy such referral letters. It stated that the referral letter sought was most likely handwritten using duplicated headed paper and while it would have been expected that the applicant's file would contain the duplicate copy, the GP surgery staff found no such record on the file. A search was also conducted of all other patient files with the same forename or surname, including incorrect spelling of these words. A computer search was carried out on the surgery computer and back up disk using the same information, the relevant hospital department, and the relevant period. A wider search was also conducted of the entire surgery but the record sought could not be found.

The position of the HSE is that it has taken all reasonable steps to look for the record sought. It appears that the record in question did, at some stage exist and this is not in dispute. As such, it is quite unfortunate that the GP surgery cannot now locate the record. However, the question I must consider is whether the HSE has taken all reasonable steps to ascertain the whereabouts of the referral letter. Having regard to the HSE's explanation of the record management practices of the surgery and of the searches undertaken, I am satisfied that it has. I find, therefore, that the HSE was justified in its decision to refuse the applicant's request for the referral letter under section 15(1)(a) of the FOI Act on the ground that the record sought cannot be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the HSE to refuse access to the referral letter sought 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