Case number: OIC-141209-M5Z3Z0

Whether SJOG was justified, under section 15(1)(a) of the FOI Act, in refusing access to the applicant’s outpatient prescription record from 2003 on the basis that the record does not exist or cannot be found

 

4 December 2023

 

Background

In a request dated 7 February 2023, the applicant sought access to records of her treatment by a named Professor (deceased) from 2003. The applicant noted she was both an inpatient and an outpatient at SJOG and Cluain Mhuire. In particular, the applicant indicted she is seeking a prescription that was recommended by the Professor to her as an outpatient. In a decision dated 4 April 2023, the decision maker noted a telephone conversation she had with the applicant on the previous day during which the applicant indicated she is seeking the last prescription she received from SJOG/Cluain Mhuire. In its decision, SJOG said it was granting the last prescription that was documented from an inpatient stay dated 20 November 2001. In its decision, SJOG stated it does not have any outpatient prescription record.

On 6 of June 2023, SJOG wrote to the applicant in response to a telephone query she made on 30 May 2023 about a particular medication she was prescribed as an outpatient. SJOG stated that as no outpatient prescription records could be found, it contacted a named doctor who was unable to confirm if the applicant had been prescribed a particular medication as there is no record of it held within Cluain Mhuire. SJOG concluded that section 15(1)(a) of the FOI Act applied as there were no further avenues it could search. On 5 July 2023, the applicant requested an internal review of SJOG’s decision. She said she wished to obtain a copy of the last prescription given to her in 2003. On 31 July 2023, SJOG affirmed its original decision, explaining that it could not locate the applicant’s outpatient file or outpatient prescription records. SJOG said it contacted a named consultant, who concluded that there were no prescriptions until 2004 or 2006 on its Mental Health Internal System (MHIS). SJOG said no copies of outpatient prescriptions issued on paper would exist before 2004. On 4 August 2023, the applicant applied to this Office for a review of SJOG’s decision.

During the course of this review, the Investigating Officer provided the applicant with details of SJOG’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request existed or could be found. The Investigating Officer invited the applicant to make submissions on the matter. The applicant rang the Investigating Officer on 3 November 2023 about the matter.

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 and communications outlined above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether SJOG was justified, under section 15(1)(a) of the FOI Act, in refusing access to the prescription record sought by the applicant on the basis that the record does not exist or cannot be found.

Preliminary Matters                                                                        

While I acknowledge the importance to the applicant of accessing a copy of the particular prescription record she is seeking, the FOI Act provides that I cannot have regard to her motives for seeking access to the information in question. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. ​​

It is also important to note 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.

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 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.

As I have outline above, SJOG provided this Office with details of its reasons for concluding that the outpatient prescription record sought by the applicant does not exist or cannot be found. SJOG stated that it located in-patient records for the applicant but no outpatient records were located. It provided the applicant with a copy of the last prescription, dated 20 November 2001, that was located from her inpatient stay. SJOG provided this Office with details of the searches carried out on both its electronic systems and in its physical locations. The Investigating Officer provided the applicant with these details. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

SJOG stated that it carried out electronic searches within its Mental Health Information System (MHIS) and although the prescriptions paperwork found within the in-patient record was located and released to the applicant, no historical notes or outpatient prescriptions prescribed by the named Professor were located. In regards to this electronic search, SJOG stated that after contacting one of its consultants on the matter, it is its understanding that “no MHIS prescriptions were created until after 2004 or 2006.” SJOG explained that this meant that any prescriptions issued on paper in 2003 would not be held on its MHIS.

In relation to the physical searches carried out, SJOG stated it conducted searches within its Cluain Mhuire location on 4 different occasions in February and March this year. It said it also searched the archive within SJOG’s hospital, but could only locate the applicant’s in-patient file. SJOG stated that a flood had occurred at Cluain Mhuire roughly 25-30 years ago and that many files were destroyed. The Investigating Officer requested further clarification whether it believed that further relevant records were destroyed during this flood. SJOG responded that “As the file was not found we can only give possibilities to what could have been the cause. There is no evidence to suggest the documents were or were not destroyed. What we can confirm is that after an extensive search, an outpatient file was not found.” While it is unclear to me how a flood that occurred 25-30 years ago would impact on the retrieval of records from 2003, it seems to me that SJOG is attempting to provide a full explanation of the searches it undertook in an effort to locate the particular record sought by the applicant. In any event, SJOG said it has been unable to locate the particular 2003 prescription record sought by the applicant.  

In it submissions to this Office, SJOG said that the full inpatient file was not released to the applicant as she specified she only wanted her prescription paperwork. It said that the inpatient prescription paperwork was released to her via registered post on 3 April 2023 and via email on 27 May 2023. SJOG said that if the applicant would like her full inpatient file, it is happy to facilitate this. SJOG stated it does not have any records of the applicant’s attendance to consultations with the named Professor or any outpatient records for the applicant.

As stated above, the Investigating Officer provided the applicant with the details of searches provided by SJOG. During her telephone call with the Investigating Officer, the applicant expressed her dissatisfaction that the record she is seeking could not be located. However, she did not provide any substantive submissions on the matter.

On the matter of whether SJOG holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. We do not generally expect FOI Bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI Body’s explanation of why a record does not exist or cannot be found.

Having considered the information before this Office in this case and in the absence of evidence to suggest that further searches should have been undertaken, I am satisfied that the SJOG has undertaken all reasonable steps to locate the records sought by the applicant. While I appreciate that the applicant will be very disappointed by my decision, I find that the SJOG was justified in refusing access to further 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 SJOG’s decision, under section 15(1)(a) of the FOI Act, to refuse the prescription record sought by the applicant on the basis that no such record exists or can be found after all reasonable steps to ascertain its 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.

 

Richard Crowley
Investigator