Case number: OIC-55430-N1M5C9
5 February 2020
In a request dated 10 October 2017, the applicant sought access to her late husband’s medical records. In a decision dated 21 February 2018, the Hospital granted the request apart from A&E Department records for an attendance on 7 April 2017 that could not be found. Following further correspondence the Hospital issued an internal review decision on the request wherein it refused access to the A&E Department records for 7 April 2017 under section 15(1)(a) of the FOI Act.
On 8 August 2019, the applicant sought a review by this Office of the Hospital’s decision to refuse access to the records in question.
During the course of this review, this Office provided the applicant with details of the searches undertaken by the Hospital and of its reasons for finding that the records concerned cannot be found. The applicant did not revert to this Office to indicate whether she wished to continue with her application in light of the search details provided.
Accordingly, I have decided to conclude my review by issuing a formal, binding decision. In conducting my review, I have had regard to the correspondence between this Office and both the applicant and the Hospital on the matter.
The scope of this review is concerned solely with whether the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for her late husband’s A&E medical records for 7 April 2017 on the ground that the records cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In submissions to this Office, the Hospital provided details of searches conducted in an effort to locate the records at issue. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Hospital said the records at issue are the attending doctor’s clinical notes (Emergency Department cards) created when the applicant’s husband was admitted to the Emergency Department (ED) on 7 April 2017. It said that following discharge, ED cards are normally scanned directly to an electronic database (Patient Care).
The Hospital searched scanned records dated 7- 24 April 2017 and also searched the ED. It carried out searches of boxes stored in the ED which contained a backlog of ED cards awaiting scanning. Normally once the paper ED card is scanned, the original physical copy is stored for a further three years before being destroyed. The Hospital contacted the attending Doctor and confirmed that he did not retain the record. The Medical Records Manager undertook a search on files of patients who also attended ED on the same date in order to ascertain whether the relevant ED card was incorrectly misfiled to another patient’s file.
While it is very unfortunate that the Hospital cannot locate records that clearly existed at some stage and that it cannot satisfactorily explain why the records cannot be found, the role of this Office is confined to determining whether the Hospital has carried out all reasonable steps to locate the records. 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 records are lost or simply cannot be found. Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.
Having considered the details of the searches undertaken, I am satisfied that the Hospital 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 the Hospital was justified in refusing access to the records at issue on the ground that they cannot be found after all reasonable steps to ascertain their whereabouts have been taken. If, at some stage in the future, the Hospital locates the relevant records, I expect it to immediately notify the applicant of their availability.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse the applicant’s request for her late husband’s A&E medical records for 7 April 2017 on the ground that the records cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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.