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Whether UCD was justified, under section 15(1)(a) of the FOI Act, in refusing to grant access to the documented medical history of a client at the UCD Veterinary Hospital (UCDVH) which the applicant drafted on the ground that the record 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 17 May 2015, the applicant made a request to UCD for access to a copy of the documented medical history he prepared for a UCDVH client (identity number supplied). On 20 July 2015, UCD refused the applicant's request on the ground that no relevant records were located in respect of his request (section 15(1)(a) of the FOI Act) and that the request formed part of a pattern of manifestly unreasonable requests (section 15(1)(g)).

On 30 July 2015 the applicant requested an internal review of UCD's decision. On 5 August 2015, UCD issued a decision affirming its original decision. The applicant sought a review by this Office of UCD's decision on 28 August 2015.

During the course of the review, Ms Sandra Murdiff of this Office contacted UCD and informed it of her view that section 15(1)(g) did not apply to the applicant's request in this case. UCD agreed with her view and provided further background details in relation to the record requested and details of the searches conducted to locate the record in question. I note that Ms Murdiff contacted the applicant on 21 December 2015 and provided him with details of the searches undertaken by UCD to locate the records at issue. She also informed him of her view that UCD had taken all reasonable steps to locate the record sought. She invited him to make a submission if he did not agree with this view. On foot of a request from the applicant's wife on his behalf, the Office agreed to extend the deadline for receipt of such a submission until 2 March 2016. Subsequently, Ms Murdiff contacted the applicant's wife to clarify if he still wished to make a submission. However, no submission has been made to date. Accordingly I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between UCD and the applicant as set out above, to details of various contacts between this Office and UCD and to details of various contacts between this Office and the applicant.

Scope of Review

This review is solely concerned with whether UCD was justified in deciding that no record relating to the applicant's request for a specified client's medical history drafted by him can 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 a case 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 FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner 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 not normally the Commissioner's function to search for records that a requester believes are in existence.

In a submission to this Office dated 9 December 2015, UCD provided details of the searches taken to locate the particular record in this case, which have been provided to the applicant. It stated that the medical files in question are held in hard copy only and there are no electronic copies created. It stated that unfortunately, as records are loosely enclosed in the files in use and each file passes through a number of hands during a client's visit, the record could have been removed or lost at any point. It further stated that it was not uncommon for students to remove such records from a client's file, for instance to assist in preparing the discharge note for the client. UCD acknowledged that the medical history in question was discussed with the applicant at a meeting with a member of the faculty, but stated that it was no longer on the client's file.

In an email to this Office dated 5 October 2015, the applicant referred to UCD's own records management guidelines and those of the Veterinary Council of Ireland to explain why he was of the view that the record in question should be on the client's file. While UCD acknowledged that the medical notes of a client in UCDVH are normally held for a period of 10 years, its position is that the specific record requested by the applicant could not be located once all reasonable steps had been taken to ascertain its whereabouts.

Taking all of the above into consideration, while it is unfortunate that UCD cannot locate the record at issue, I am of the view that it has taken all reasonable steps to locate it. Accordingly, I find that UCD was justified in its decision to refuse to the request on the ground that the record sought cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Decision

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