Whether the Hospital was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records sought by the applicant on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

26 April 2022

Background

In a request dated 1 September 2021, the applicant sought access to her files from September 2000 to September 2001, including any written and emailed correspondence she had within these dates. In a decision dated 14 September 2021 the Hospital granted the request and released the applicant's medical chart to her. On 19 October 2021, following further correspondence from the applicant, the Hospital released further records to the applicant. On 7 December 2021 the applicant sought an internal review of the Hospital's decision on the basis that she did not receive a copy of correspondence she had with the then Master of the Hospital. The applicant also said she had not been given the medical notes for the last hours of her labour. On 23 December 2021, the Hospital affirmed its original decision. On 31 January 2022, the applicant applied to this Office for a review of the Hospital's decision.

During the course of the review, this Office's Investigator provided the applicant with details of the searches undertaken by the Hospital to locate the records she requested and informed her of his view that the Hospital had undertaken all reasonable steps to locate the records sought. In reply, while the applicant offered no submissions to dispute the Hospital's position, she asked that her case proceed to a formal decision. 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the Hospital outlined above and to communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

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. The applicant considers that additional relevant records exist. Accordingly, this review is concerned solely with whether the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing access to the additional records sought by the applicant on the ground that no further records exist or can be found.

Preliminary Matters                                                                                                

Before considering the substantive issue arising, I wish to make a number of preliminary points. Firstly, subject to other provisions of the Act, section 13(4) requires FOI bodies and this Office to disregard an applicant's reasons for making a request. This means I cannot have regard to the applicant's motives for seeking access to the records at issue.

Secondly, this Office has no role in adjudicating upon how FOI bodies carry out their functions generally or in investigating complaints against FOI bodies. The scope of the review is confined to considering whether the Hospital was justified in refusing access to the additional records which the applicant is seeking.

Analysis and Findings

Section 15(1)(a) of the 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. 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 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 generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, the Hospital said that it provided the applicant with a copy of her medical chart. The Hospital explained that any correspondence between the then Master of the Hospital and the applicant that was related to her medical care would have been placed on her medical file. It said that any other correspondence with the Master of the Hospital, for example concerning a complaint, would be retained in the Master's Office. It said that the Master's Office was searched in September 2021 and again in October 2021 for this correspondence. The Hospital explained that the Master's Office was relocated to a different building in January 2022 and a subsequent search by the Master's Secretary was carried out at that time, when all paper and electronic files were validated and audited. The Hospital said that no correspondence between the applicant and the Master of the Hospital could be found.

In relation to the applicant's labour records, the Hospital said that the applicant was given a full and complete copy of her medical records, including the notes on the labour sheets in the delivery section of the chart. The Hospital offered to discuss the records it provided to the applicant should she wish to clarify the content of those records.

It is important to note that the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the records sought. The FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

As outlined above, this Office provided the applicant with details of the searches undertaken by the Hospital in this case. While the applicant was understandably disappointed that certain specific records could not be found, she was not in a position to provide any further information to suggest that additional searches might be warranted.

Having regard to the details of the Hospital's submissions and to its explanation as to why it considers that no further relevant records exist, I find that it has taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Hospital was justified in refusing access, under section 15(1)(a) of the act, to further relevant records on the ground that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's decision, under section 15(1)(a) of the Act, to refuse access to the additional records sought by the applicant on the ground 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator