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Case 100166

The Senior Investigator found that the Hospital is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to the medical records sought on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Case Summary

Whether the Hospital is justified under section 10(1)(a) of the FOI Act in its decision to refuse access to the Applicant's medical records on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Date of Decision: 20.10.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant wrote to the Hospital on 14 October 2009 requesting access to his medical records. On 28 October 2009 the Hospital issued a decision refusing access to the medical records on the basis of section 10(1)(a) of the FOI Act. However it did locate an index card with the Applicant's details which was released with the decision. The Applicant requested an internal review on 18 November 2009 and the Hospital upheld the original decision on 19 April, 2010. The Applicant wrote to this Office on 13 July 2010 seeking a review of the Hospital's decision.

In conducting this review I have had regard to the submissions of the Hospital as well as those of the Applicant. I have also had regard to additional information and clarification provided by the Hospital at the request of this Office and to the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

This review is concerned solely with the question of whether the Hospital is justified in its decision to refuse access to the Applicant's medical records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Submissions

.

Findings

Section 10(1)(a)

The Hospital relied on section 10(1)(a) of the FOI Act to refuse access to the medical records sought. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned 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 public body and to decide whether that decision was justified. This means that the Commissioner 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 public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

The Hospital has provided the following information on record keeping practices:

• Medical records relating to all living patients born before 1969 were destroyed in 1992 in accordance with hospital policy at the time;
• No record of that hospital record management policy can be found;
• From staff recollections the decision to destroy the records in 1992 was due to ongoing problems with storage of records;
• Advice was sought and received from the Medical Protection Society in 1991 in relation to the hospital's legal requirement for the retention of medical charts;
• A new Medical Records Library was completed in December 1992, at which time all records relating to live patients born in 1968 or before were destroyed;
• It has never been hospital policy to transfer a patient's full healthcare record to microfiche;
• Laboratory reports were transferred to microfiche from mid 1980's up to 1997. As the applicant's last attendance at the hospital was in 1980 any laboratory reports relating to him would not have been included;
• The current practice in the hospital is of non destruction of any patient healthcare records regardless of age.

According to the Hospital, it carried out the following searches and enquiries:

• The electronic patient administration system was searched - no records found;
• The manual healthcare records index card system was searched - a record index card was located and released to the Applicant;
• The outside storage company used for additional storage space was searched - no records were found.
• The X-ray Department was searched - no records found.

It is clear from the index card record that the Applicant was an in-patient in the Hospital on numerous occasions between 1968 and 1980. The Hospital's position is that his records were destroyed in 1992 when, due to a lack of storage space, a decision was taken to destroy the records of all patients (born prior to 1969) who had attended the Hospital between 1956 and 1992. It is clear from documentation supplied to this Office that in the years leading up to 1992 the Hospital had a problem with storage space and was contemplating the destruction of records. However, the Hospital has been unable to provide this Office with any evidence, other than the recollections of staff, of the actual destruction of the records, a list of the records destroyed, whether any exceptions were made, or details of when or by whom the records were destroyed. While this is clearly an unsatisfactory situation, the issue in this review is whether the Hospital is justified in refusing access to records falling within the scope of the request on the grounds that, following the taking of "all reasonable steps" to find them, such records cannot be found or do not exist. All "reasonable steps" refers to the Hospital's search for the records at this stage. I can appreciate that the applicant will be unhappy that, on the balance of probabilities, the likelihood is that any records relating to his treatment were destroyed in 1992. However, based on the search steps outlined above, and taking into account the age of the records, I am satisfied that the Hospital has carried out an adequate search in relation to these records. Accordingly, while fully acknowledging the importance to the applicant of the records requested, I find that the Hospital is justified in seeking to rely on the exemption in section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Acts, as amended, I hereby affirm the decision of the Hospital in this case.

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 a review must be initiated not later than eight weeks from the date on which notice of the decision was given.

Elizabeth Dolan

Senior Investigator

20 October 2010