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Case Number: 170112

Whether the HSE was justified in deciding to refuse access to medical records relating to the applicant under section 15(1)(a) of the FOI Act on the ground that they do not exist or cannot 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

The applicant submitted a request to the HSE on 14 December 2016 for her medical chart from Mallow General Hospital created in and around 1972. On 18 January 2017, the HSE informed the applicant that it was refusing her request on the grounds that the record she sought does not exist or cannot be found.

On 30 January 2017, the applicant sought an internal review of that decision, and drew the Hospital's attention to the possible existence of theatre registers from the same period, which might assist them in locating her medical chart. The HSE located and provided the applicant with a copy of the theatre log book entry located during searches conducted on foot of the original request. In its decision, the HSE stated that no further records exist or could be located. On 3 March 2017, the applicant sought a review by this Office of the HSE's decision.

During the course of this review, the HSE provided this Office with information regarding the Hospital's applicable records management policy and the searches conducted to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches on 28 April 2017. She also informed the applicant of her view that the HSE was justified in deciding that no further relevant records exist or could not be found. As the applicant has not responded to Ms McCrory's letter, 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 the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse the applicant's request for her medical chart and the relevant theatre register from that same period under section 15(1)(a) of the FOI Act, on the ground that the records sought do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their 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 and 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 decision maker concluded that the steps taken to search for records were reasonable.

In a submission to this Office, the HSE provided details of the applicable records management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details.
In summary, the HSE stated that the current policy is to retain operating theatre registers for 8 years after the year to which they relate, and retain records of destruction of individual healthcare records permanently under the Record Retention Policy Health Service Executive Policy 2013. However, it stated that at the time of the creation of the relevant records in this case, more than 40 years ago, theatre registers were not retained. In particular, it stated that prior to 1998 Health Boards did not have a records retention policy in place advising that a record should be kept of records which were being destroyed and that no such record exists in relation to the relevant period.
The HSE stated that old log books used to keep a record of patient admission prior to the introduction of an electronic patient information system were searched. One entry referred to the applicant, indicating the date of her admission and a "file number" which is a chart number according to the Hospital.
The HSE stated that searches were carried out using the applicant's name (maiden & married), the chart number found in the log book, variations of that chart number and year of admission in a number of locations, including its Medical Records Office, its St. Coleman's storage facility on site, and in Iron Mountain (an external storage provider). However, the medical chart sought could not be located. It further stated that it does not have theatre registers for Mallow General Hospital prior to 1997. It explained that searches were undertaken for theatre registers from the same period at the internal review stage. Records dated prior to 1997 could not be located either onsite or externally. Therefore it was concluded that these records do not now exist.

I would note that the applicant was dissatisfied with the photocopy of the logbook entry provided by the HSE at the internal review stage. The HSE stated in its submission to this Office that the photocopy is not of high quality and the date of admission is not legible as the log book is a hard back book that cannot be laid directly on the photocopier surface. It informed this Office that it contacted the applicant in light of this, and offered that she attend Mallow General Hospital to view the Register in person in order to rectify this issue.

While it is unfortunate that the HSE cannot locate the records sought, I am satisfied, having regard to the details of the searches conducted and of the HSE's record retention policies as outlined above, that it has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the HSE was justified in its decision to refuse the applicant's request for access to the records sought on the ground that they do not exist or cannot 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 Department 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 to the person bringing the appeal.

Stephen Rafferty
Senior Investigator