Whether TUH was justified in refusing to release further medical records to the applicant on the ground that no further records could be found having taken all reasonable steps to ascertain their whereabouts

17 December 2020

Background

The Meath, Adelaide and the National Children’s Hospitals were incorporated into Tallaght University Hospital in June 1998. According to TUH’s website, this process involved the removal of over 170,000 patient records and almost 50,000 patient x-rays. During the early 1990’s the applicant attended both the Meath and Adelaide Hospitals. The applicant was injured in a road traffic accident (RTA) and suffered serious injuries resulting in a disability. He received a number of physiotherapy sessions at the Meath Hospital. During the course of his treatment in the 1990s it appears he attended other medical Clinics and/or Hospitals, and at least some of this treatment appears to have been initiated via referral from his Doctors in the Meath and Adelaide Hospitals. 

In a letter dated 27 February 2020, the applicant wrote to TUH outlining his notable events in his medical history. He stated that he required a medical report to demonstrate to his local council the need to facilitate certain housing needs. I understand that TUH’s FOI Officer spoke with the applicant and explained that it cannot generate a medical report as requested but explained that he could seek access to medical records. As such, TUH processed his letter dated 27 February 2020 as a request for access to medical records.

On 25 May 2020 and 8 July 2020, TUH released records to the applicant. TUH wrote to the applicant outlining that it could not locate the applicant’s medical records for the Adelaide Hospital.

On 14 August 2020, TUH issued an original decision refusing the applicant’s request for his medical records for the Adelaide Hospital under section 15(1)(a) of the Act on the ground that the records could be found. The applicant sought an internal review of that decision. On 10 September 2020, TUH affirmed its original decision to refuse access to the records sought following a second search for the records in question. On 18 September 2020, the applicant sought a review by this Office of that decision. In his correspondence with this office, he argued that the records he received are also incomplete.

During the course of the review, the investigating officer sought submissions from TUH on the searches carried out to locate all relevant records.  She provided the applicant with details of the searches carried out by TUH and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that TUH was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. The applicant responded on 14 December 2020 indicating he believed that further records exist.

In the circumstances, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the TUH and the applicant as outlined above and to correspondence between this Office and both the TUH and the applicant on the matter.

Scope of the Review

I note that in correspondence with this Office the applicant listed a number of Clinics and Hospitals, such as the Mater Misericordiae University Hospital and Blackrock Clinic, which are not under the control of TUH. Records held by the applicant’s GP and FOI Bodies other than TUH are outside the scope of this request. However, where the Clinic/Hospital is a public body it is open to the applicant to make a separate FOI request(s) to these organizations.

This review is concerned solely with whether TUH was justified, under section 15(1)(a) of the Act, in refusing to release any additional medical records relating to the applicant other than those already released on the ground that no further relevant records exist or can  be found.

Preliminary Matter

As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of this review, TUH provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, TUH said that when the Meath and Adelaide Hospitals were incorporated into TUH in 1998 inactive charts were microfiched. A microfiche is a flat piece of film containing microphotographs of a document, in this case medical records. TUH said it is not certain of the criteria of what amounted to an inactive chart in 1998 but at present an inactive chart at TUH means that if somebody has not been in hospital for the last year the chart is sent to storage. It said that on a microfiche film label the following criteria are printed on the label: Name of hospital, name of service user, MRN (medical reference number) and date of birth. It said that the microfiched records are stored in numerical order in the boxes and are stored in a third party storage facility.

TUH explained it employs an electronic system that can search for the name and date of birth of a service user which gives the medical record number of the service user. When necessary, for example during processing FOI requests, this information is sent to TUH’s third party storage facility and they find and print the relevant record(s). It explained this process was carried out to locate the applicant’s Meath and Adelaide Hospital records. It stated that the Meath and Adelaide Hospital records are stored in different storage facilities. It said that physical hard copies of the files are retained by TUH also and are similarly held in a third party storage facility.

TUH said when it could not locate the micro-fiched copy of the applicant’s medical records in Adelaide Hospital, TUH’s medical records manager carried out a search for the physical copy of applicant’s Adelaide records but no records were located.

In relation to the Meath Hospital records, TUH said that it has provided the applicant with all records. TUH said anything from the Meath Hospital would be on microfiche.  In relation to the applicant’s opinion that records relating to his physiotherapy sessions as the Meath Hospital were missing, TUH contacted the physiotherapy manager and staff who confirmed there are no further records stored in relation to him. It said that referrals to specialists would also be contained in the microfiched records.

TUH said there are no other places where the records sought would be located. In relation to more recent records in TUH, the FOI Officer explained that they carry out searches for a chart using the date of birth and name of an applicant. It said that they also use MRN if supplied. TUH stated that when the chart location is identified, it is retrieved either on site or off-site (third party storage). The chart is then reviewed to ensure it is complete. Electronically stored records are printed along with a CD of Health Care Records. In relation to records of referrals, TUH said that normally a letter is dictated and sent to relevant clinician/institution. This is maintained on the ICT system. It confirmed it released the applicant’s full TUH file to him.

It is, in essence, TUH’s position that no further relevant records can be found or do not exist. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found.

It is unfortunate that the Hospital cannot locate any further relevant records. However, it is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that the TUH has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that TUH was justified in refusing access to further records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of TUH to refuse the applicant’s request for further medical records relating to him on the basis that no further records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator