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Case Number: 160095

Whether the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing to grant access to the applicant's medical records on the ground that they cannot be found after all reasonable steps to ascertain their 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

In July 2004, following a review, this Office affirmed a decision of the Hospital to refuse access to the applicant's medical records relating to the period 1989 to 1992 on the ground that the records sought could not be found. Following that decision, the applicant engaged in further correspondence with the Hospital in an effort to gain access to her records, which culminated in a letter to the Chief Executive of the Hospital in 2008. The Hospital replied on 31 October 2008, stating that substantive efforts had been made to locate her records and that they could not be located. It again referred to this Office's 2004 decision and said that from the Hospital's perspective, "this matter has been fully investigated".

Following further correspondence with the Hospital and this Office, the applicant made a new request to the Hospital on 18 June 2015 seeking access to all records held relating to her from 1 March 1989 to 3 July 1992. On 17 July 2015, she sought an internal review on the basis of a deemed refusal of her request as the Hospital had not issued a decision on the request. Further correspondence followed and on 28 August 2015 the Hospital refused the applicant's request of 18 June 2015 under section 15 on the ground that the records sought cannot be located. On 28 February 2016, the applicant sought a review by this Office of the Hospital's decision.

During the course of the review, Ms Sandra Murdiff of this Office provided the applicant with details of the recent searches the Hospital had conducted to locate the records. She informed the applicant of her view that the Hospital's decision to refuse the request was justified on the ground that it had taken all reasonable steps to locate the records. The applicant indicated that she did not agree with Ms Murdiff's view and wished to proceed with her application. Accordingly, I have decided to conclude this review by issuing a formal, binding decision.

In conducting this review I have had regard to correspondence between the applicant and the Hospital in relation to the request and to correspondence between this Office and both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant's request for her medical records on the ground that they 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 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 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 relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).
It should be noted that this Office may conclude that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. The Act does not require a public body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.

In response to a request for further information by this Office, the Hospital provided details of the searches undertaken to locate the applicant's medical records. As I have outlined above, Ms Murdiff of this Office has already provided the applicant with the details of these searches. In summary, the Hospital stated that it conducted manual searches of files in all locations where it might expect to find relevant records. The locations that were searched included the chart room and the storage facility in Bow Lane, Dublin where older files are kept off-site. The Hospital said that the possibility of the original chart still being in existence is unlikely. It also carried out further searches relating to files on microfilm of a particular doctor who treated the applicant and had worked between the Hospital and St Patrick's Hospital, Dublin for a range of years. It has provided details of the searches carried out in relation to files on microfilm and said that the applicant's file number and name are not on the index of scanned files, and that her file was not found on the microfilm.

The applicant raised a number of issues with this Office relating to the replies provided by the Hospital. In particular she queried the Hospital's various explanations relating to a named member of Hospital staff and his/her connection with her file. In the course of the previous review, some confusion arose concerning the identity of the person responsible for entering the last file movement on the computerised tracking system, Ashley Murphy. At the time, the Hospital stated that the confusion arose as two staff members with the same name had been employed by the Hospital. In its recent response to Ms Murdiff's enquiries for the purposes of the current review, Mr Cathal Kinsella, FOI Officer at the Hospital, stated that the function of tracking medical record charts as they move from area to area was rolled out over several years in the mid to late 1990s. He stated that prior to this, new charts or existing charts being tracked onto the Patient Administration System (PAS) were all tracked to Ashley Murphy and following his discussions with staff, it is his understanding that a name was needed to track records at the time the PAS system was introduced in 1988/89 and the name Ashley Murphy was chosen. He further stated that there was confusion on the matter as there was an Ashley Murphy who worked in Medical Records, but that this was at a later time, from 2000 to 2009.
I can fully appreciate that the applicant finds the various explanations difficult to accept. However, it is not clear to me that any further examination of the issue would assist the Hospital in locating the records sought, given the significant passage of time since the details were recorded on the Hospital's PAS system. The fact remains that the records did, at some stage, exist as details of the records were entered on the PAS system. The question I must consider is whether the Hospital has taken all reasonable steps to locate those records. They have not been located despite numerous searches of hard copy files and microfilm. While the Hospital was not in a position to definitively state what happened to the records, it stated that since the applicant last attended the Hospital the chart room has moved twice and that when the location of a storage area is changed all of the charts are logged to the new location on the system. It said that the likelihood of the applicant's chart being in the chart room and not being tracked during one of the moves is unlikely. Its position is that the applicant's file no longer exists or cannot be located.

I can fully understand the applicant's strong concerns and am conscious of the significant efforts she has made in an effort to gain access to her medical files. It is very unfortunate that the Hospital is not in a position to definitively state what happened to the relevant medical records or why they cannot be found. However, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Having reviewed the steps taken by the Hospital, I am satisfied that it has taken all reasonable steps to locate the relevant records. I find, therefore, that Hospital's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Hospital's decision.

 

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