Whether the Hospital was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant's request on the ground that no further records existed or could be found

13 October 2023

Background

The background of this cases lies in the applicant-�s referral to the Integrated Care Programme for Older Persons Service (ICPOP) at the Hospital by his GP on 16 May 2022. The ICPOP is a joint programme run by the Hospital in conjunction with the HSE. Following the referral, I understand that a home visit was carried out by Dr A (Dr B-�s Registrar at the relevant time), to assess the applicant. A letter was sent to the applicant-�s GP on foot of the visit, apparently based on Dr A-�s handwritten notes taken at the time of the visit. I understand that the applicant was made aware of the contents of the letter and that he strongly disputes its accuracy on a number of important matters.

The applicant-�s position is that he attempted to contact the Hospital to raise the matter of what he considered to be inaccuracies in the letter through various methods including an email to Doctor B, and a letter sent to the Hospital by Registered Post. I understand that a staff member from the Hospital contacted him by telephone on 26 August 2022 to discuss these matters.

On 22 September 2022, the applicant sought access to all records relating to and following on from his ICPOP referral on 16 May 2022. He included a list of eight specific matters he sought records relating to, including Doctor A-�s visit, and the handling of various emails and letters from him (the applicant) to the Hospital. On 23 September 2022, the Hospital acknowledged his request. On 14 October 2022, the applicant again emailed the Hospital seeking access to records relating to him. He clarified that this request concerned his email on 30 September 2022 to Doctor B querying the content of his medical records on foot of the letter to his GP. On 24 October 2022, the applicant requested an internal review on the grounds that he had not received an original decision. On 27 October 2022, the Hospital issued an original decision stating that it was granting access to the records sought and it released a copy of the applicant-�s hardcopy and electronic patient records. In later correspondence, the Hospital referred to this letter as issuing on 1 November 2022, however the copy of this decision letter provided to this Office is dated 27 October. On 24 and 26 November 2022, the applicant applied for an internal review of the Hospital-�s decision on both requests on the grounds that not all parts of his request(s) had been addressed by the records released to him. On 12 January 2023, the Hospital issued one internal review decision in relation to both requests, which it decided to treat as one. It granted access to additional relevant records, mostly located by the ICPOP team on foot of new searches.

On 16 March 2023, the applicant applied to this Office for a review of the Hospital-�s decision. The applicant provided details of a number of categories of records which he still sought but remained outstanding.

During the course of this review, further records which had been added to the applicant-�s electronic patient record were identified and released to him. Its position is that no additional records relating to his request other than those released to date exist or can be found. In its submissions to this Office the Hospital provided details of the searches undertaken to locate relevant records and its reasons for concluding that no additional records exist or can be found. The Investigating Officer provided the applicant with details of the Hospital-�s submissions in this regard. The applicant was invited to make further submissions, which he duly did.

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 submissions made by the applicant and to the submissions made by the Hospital in support of its decision. I have also had regard to the records released to the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Hospital was justified in refusing to release additional records relating to the applicant-�s request other than those already released on the basis of section 15(1)(a) of the FOI Act.

Preliminary Matters                                                                       

During the course of this review the applicant raised concerns regarding the handling of a registered letter sent by him to the Hospital, which was later found in an office in Cherry Orchard Hospital. He also raised concerns about the manner in which the Hospital had handled his requests and referred to records as containing false information. It is important to note, as a preliminary matter, that 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. Our role is confined to reviewing the Hospital-�s decision in relation to the records sought.  

Analysis and Findings

Section 15(1)(a)

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. Our 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 their decision and 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 his application for a review and in his correspondence with this Office, the applicant referred to a number of issues. In particular, he queried the absence of records as follows:

• Records held/created by a number of named individuals relating to him,
• Doctor A-�s -�copious notes-� made during the visit to the applicant-�s home,
• Records relating to a letter sent from Doctor A to the applicant-�s GP regarding him on 1 July 2022, an email to Doctor A on 10 August 2022 and the handling of registered post sent by the applicant to Doctor A,
• Records relating to a phone call between the applicant and a named staff member of the Hospital on 26 August 2022,
• Records relating to an email sent by the applicant to Dr B on 8 September 2022, and the handling of another email to Dr B on 30 September 2022,
• Records relating to a forward notice sent by the applicant regarding an email to the Dr B on 30 September 2022,
• Any records which would support the disputed comments made in the letter to his GP.

As I have outlined above, the Hospital provided this Office with details of the searches it said it undertook in an effort to locate further records relating to the applicant-�s request, and its reasons for concluding that no further records exist or can be found. As also noted above, a summary of these submissions were provided to the applicant by this Office. While I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purposes of this review. I have also had regard to the applicant-�s comments in response.

Essentially, the Hospital stated that it located a hardcopy patient chart in its medical record storage facility and an electronic patient record (EPR) on its systems relating to the applicant. It said that all of these records have been released to him. It appears that the Hospital was of the view that these were the only records that it would hold relating to the applicant and accordingly, it did not look elsewhere in making its original decision on his request.

However, in its submissions to this Office, the Hospital stated that at internal review stage, it asked Dr B and the ICPOP administration team to clarify whether they held any additional hardcopy records relating to the applicant not yet filed on his chart and/or additional electronic records not held on his EPR. The team stated that records relating to the management of patients were saved in the patient correspondence drive on the Hospital server. The Hospital confirmed to this Office that this drive had not been checked for relevant records when it initially processed the applicant-�s request(s). However, it stated that this was rectified, as set out in its internal review decision on 12 January 2023. The Hospital-�s position is that all relevant Hospital staff have been contacted in relation to the applicant-�s request at this point.

The Hospital stated that the ICPOP team confirmed that it does not keep separate medical records on patients who attend their service. It stated that all records relating to consultation, diagnosis, and prognosis are filed and documented in a patient-�s medical record, either on the hardcopy medical chart or scanned onto the relevant EPR. It stated that typed letters to the applicant or to his GP would be included in his medical records. However, it also stated that routine email correspondence, such as appointment confirmations, are kept by the relevant department or individual staff members for operational reasons. As noted above, the ICPOP team was asked to search for records relating to the applicant-�s request and the additional records located have been released to him.

The Hospital stated that the ICPOP administrative team has confirmed that it does not routinely update medical records with notes of telephone conversations in relation to home visits or appointments. Its position is that that there are no records of phone calls made by the applicant and in particular that there is no record of a telephone call between the applicant and the relevant staff member on 26 August 2022.

In relation to the records relating to the home visit, the Hospital stated that it is not always practical to complete all documentation on EPR during a home visit and that on occasion the relevant doctor will take some shorthand notes during the assessment. It stated that these notes do not have any patient identifiers on them and are shredded via the confidential bins in the Hospital as soon as the note is added to the EPR.

In relation to emails sent by the applicant to a number of doctors at the Hospital, the Hospital-�s position was that copies of the only emails it located from the applicant-�s email address have been provided to him. The Hospital stated that emails sent to the[email protected]email address around the relevant time would have bounced back or generated an error message as that mail address was no longer in use. The Hospital believes that a number of the applicant-�s emails were sent to that address and that accordingly, they were not received. It stated that it only received these emails when the applicant subsequently sent in printed copies of these records. It also stated that one of his emails indicated that he intended to consider matters and then respond. The Hospital-�s position is that it did not act on his email of 13 September 2022 as it was waiting for further correspondence from the applicant.

As noted above, the Hospital stated that the registered letter sent by applicant was located in the Cherry Orchard Office hub. It said that Dr B, who is the clinical lead of the ICPOP programme, retains offices in both the Hospital and the Cherry Orchard hub. It confirmed that this document is now in the Hospital and will be put on the applicant-�s medical chart that that no records relating to the applicant are currently held in Cherry Orchard.

The applicant requested a copy of a letter dated 1 July 2022, from Dr B to the applicant-�s GP, which was referenced in a subsequent letter to his GP on 5 September 2022. The Hospital-�s position is that the reference to 1 July is an error and that the date should have read 4 July. It said that the letter dated 4 July has already been provided to the applicant.  

In its internal review decision dated 12 January 2023, the Hospital addressed what I believe is the crux of the matter -� the disputed content of the letter to the applicant-�s GP following the home visit by Doctor A, who at the time was a Registrar on Dr B-�s team. The Hospital stated that Dr B had agreed to send a letter to the applicant and his GP clarifying the terminology used concerning a reference to a particular medical condition, which the applicant states he has never been diagnosed with. The applicant had also objected to a reference in the letter to his having no interest in certain further surgical intervention. He stated categorically that he had had no previous surgery as the letter appeared to state and requested copies of the records on which Dr A had based his understanding that he had. In response, the Hospital stated that Dr B had indicated that he would remove the word -�further-� from the comments and send a letter to the applicant-�s GP to clarify this. From a careful examination of the additional records released at internal review stage, I note a letter from Dr B to the applicant on 5 September 2022, which apologised for any distress caused by the letter from Dr A to the applicant-�s GP. Dr B thanked the applicant for bringing -�any errors or inaccuracies-� to his attention and enclosed a letter to the GP seeking to address the seven matters the applicant had disputed in the original letter.

Finally, the Hospital stated that while additional relevant records may be held by the applicant-�s GP, the ICPOP occupational therapist or the community advanced nurse practitioner, these records would be held by the primary care team, and as such were not under the Hospital-�s control. It is, of course, open to the applicant to make a fresh FOI request to the HSE regarding his primary health records if he wishes.

The applicant has indicated to this Office that he does not accept the Hospital-�s explanation for not replying to his emails or letters in relation to the matters at hand. He has stated that the staff member he spoke to on 26 August 2022 said that he would email Dr A and Dr B confirming details of the telephone conversation. He does not accept that no records were located relating to this. The applicant enclosed a copy of documentation showing that his registered letter had been sent to St James-�s Hospital and not to Cherry Orchard. He has queried the lack of records relating to how it went from one location to another. In particular, he has set out a list of what he considers to be inaccuracies in the letter to his GP and has queried the lack of underlying records supporting these statements

I have had regard to the submissions provided by the Hospital, which outline the searches that were undertaken to locate further records relating to the applicant-�s request and to its explanation for concluding that no additional records exist. I have also had regard to the applicant-�s extensive submissions and comments. In his submissions to this Office, I note that the applicant referred to records supporting various comments made in the letter as having been -�lost-� by the Hospital. To clarify, I am satisfied that the Hospital-�s position is that these records never existed. Furthermore, it seems to me that the Hospital-�s comments in its internal review decision on 12 January 2023 in relation to the amending the letter and Dr B-�s comments in his letter of 5 September 2022, effectively acknowledge that the original letter contained inaccuracies, as contended by the applicant. It also appears as though this explains why no records relating to previous surgeries or other comments made in the letter have been located. I have had regard to the Hospital-�s submissions that it did not receive the applicant-�s emails. I have also considered Dr B-�s comment in his letter of 5 September that the staff member in question rang the applicant in August to arrange a second home visit on foot of the concerns raised in his letter to Dr B, but that the applicant had indicated that he preferred a response in writing. While the staff member concerned may have told the applicant that he would email Drs A and B following the conversation, no such records have been found. It seems reasonable that the staff member may simply have informed Dr B verbally that the applicant did not wish another visit to take place. In any event, the Hospital has stated that no such records have been located.

While I understand that the applicant is not satisfied with the Hospital-�s responses, in the absence of evidence to suggest that further searches should have been undertaken, it seems to me that the Hospital has taken all reasonable steps to locate additional records relating to the applicant-�s request, and that it has adequately explained why no further relevant records can be found. Furthermore, as noted above, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not be located.

In the circumstances of this case, I find that the Hospital was justified in refusing access to additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, on the ground that no further 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) of the FOI Act, I hereby affirm the Hospital-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.
 

Sandra Murdiff
Investigator