Case number: 090243
The Senior Investigator found that the hospital is justified in its refusal to release additional records on the basis that such records either do not exist or cannot be found and that section 10(1)(a) of the FOI Act applies.
Whether the hospital is justified in its decision to refuse a request for access to records made under section 7 of the FOI Act on the basis that section 10(1)(a) of the FOI Act applies.
The application for review of the FOI decision on the Applicant's FOI request was received on 14 September 2009. The FOI request at issue was made to the hospital on 22 June 2009. The FOI request sought access to the time of the Applicant's birth at the hospital on (date). The Applicant provided her mother's full name and the date and entry number of the subsequent registration of her birth on (date). On 3 July 2009, the hospital issued a decision on the FOI request. That decision refused access to the information requested on the basis that the hospital was unable to locate any birth registers for the year (in question). On 10 July 2009, the Applicant sought an internal review of the FOI decision and stated her understanding that birth records are retained for 50 years which would mean that her details should be available. She also advised that her parents were both deceased and that there was no other avenue she could pursue for the information sought. On 31 August 2009 the hospital issued its decision following internal review. That decision affirmed the original decision. The hospital advised that it had conducted a further search of the Medical Records Department in an effort to locate the birth register, however the search did not yield the relevant register. Therefore, the hospital affirmed its original decision. In conducting this review, I have had regard to the submissions of the hospital as well as the correspondence of the Applicant and the provisions of the FOI Acts.
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.
There is one issue in this review - whether or not the hospital is justified, within the terms of the FOI Act, in refusing access to the information sought on the grounds that section 10(1)(a) of the FOI Act applies.
As set out at section 34(12)(b) of the FOI Act, where a decision to refuse a request is being reviewed by the Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the hospital to satisfy me that its decision is justified.
The hospital's contention is that, despite searching extensively, the birth register incorporating the date (in question) cannot be located. The hospital has provided details of having organised a search of a storage area where archived records are stored and of the FOI Researcher's Office where Patient Registers are held. The hospital has confirmed that there is no other storage area where such records might be located. The hospital has also advised that, unlike patient charts, birth registers are bulky items - a birth register has 25 pages - and would, for that reason alone, be difficult to misfile or misplace. The birth register which would contain the details of a (date) birth is one of many such registers which cannot be found in the hospital. This Office asked the hospital to consider whether the relevant birth register might have been destroyed ; the hospital said that there were no indications that this might have happened. This Office has established that older registers containing information on births going back to 1945 are held at the hospital. Additionally, the hospital has confirmed that there are no other records within the hospital which would contain the information sought - the Applicant's time of birth on (date).
The position therefore is that the hospital has applied section 10(1)(a) of the FOI Act in circumstances where a record containing the requested information cannot be found.
Section 10(1)(a) provides that:
"(1) A head to whom a request under section 7 is made may refuse to grant the request if -
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."
In cases of this nature, the Commissioner's approach is to review the decision of the public body - the hospital in this instance - together with the evidence available and to decide whether or not that decision was justified. This approach has been approved by the High Court in the case of "Matthew Ryan & Kathleen Ryan and the Information Commissioner"[2002 No. 18 MCA].
The Commissioner is primarily concerned with ensuring public access to existing records in accordance with the provisions of the FOI Act. It is relevant that the FOI Act does not provide for a right of access to records which ought to exist. Clearly, it is unsatisfactory that a record containing information relating to the Applicant's birth on (date) cannot be found, particularly when older records do exist. I have taken account of the Applicant's understanding that birth records should be retained for 50 years. I also note from the National Hospitals Office Code of Practice for Healthcare Records Management (2007) that the prescribed retention period for birth registers is 10 years. In any event, it is clear from the information set out above that the hospital has gone to some considerable lengths to search for the record containing the information requested. That record would now be (-) years old. I am satisfied that the hospital has responded thoroughly and reasonably to the queries posed about its searches in this case.
Having considered the matter, and while having a great deal of sympathy for the Applicant who has no other way of establishing her time of birth on (date), I have concluded that all reasonable steps have been taken to ascertain the whereabouts of the record containing the information sought. I find, therefore, that the hospital's decision was made justifiably in accordance with section 10(1)(a) of the Act.
Finally, if it should transpire at any point in the future that the birth register containing the details of the time of the Applicant's birth on (date) is located, I would expect the hospital to make the information available to the Applicant.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the hospital in this case.
A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.