Review Application under the Freedom of Information Acts 1997 & 2003 (the FOI Act) to the Information Commissioner
Case Number: 130116
Applicant: Ms X.
Public Body: The Health Service Executive (the HSE).
Issue: Whether the HSE has conducted reasonable searches for records concerning the applicant's son's engagement with the HSE's Children and Adolescent Mental Health Service.
Review: Conducted in accordance with section 34(2) of the FOI Act, by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.
Decision: The Senior Investigator affirmed the HSE's refusal of further records of relevance to the applicant's request on the basis that it had conducted reasonable searches and that section 10(1)(a) of the FOI Act applied.
Right of Appeal: A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an 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.
On 23 August 2012, the applicant made an FOI request for copies of records held by a named unit of the HSE's Children and Adolescent Mental Health Service (the Unit) regarding her minor son's attendances there. As the HSE did not issue a decision within the timescale required by the FOI Act, it was thus deemed to have refused her request. The applicant sought an internal review of the HSE's deemed refusal on 17 October 2012. The HSE issued its internal review decision on 14 March 2013. It said that it was releasing the 440 records it had located subject to the redaction of details concerning persons other than the applicant's son. On 10 May 2013, the applicant sought a review by this Office of the HSE's refusal to fully release all relevant records. She also contended that further records should or could be contained on the file, which she elaborated on in her emails to this Office of 8 and 9 September 2013.
By way of letter dated 12 September 2013, Ms Anne Lyons, Investigator, told the applicant that she had sought various details from the HSE regarding its searches for records. She also outlined her view that the HSE had acted in accordance with various provisions of the FOI Act in fully or partially withholding certain records on the file, but asked the applicant to confirm if two particular records (records 15 and 17) had been released to her in full or in part. Ms Lyons also outlined her understanding, further to an earlier telephone conversation with the applicant, that the applicant did not wish to pursue the HSE's redaction of third party names and telephone numbers from individual records, and told the applicant that she had not considered such details accordingly.
In an email to this Office dated 16 September 2013, the applicant said that records 15 and 17 had not been released to her. Further to a telephone conversation the following day, the Investigator emailed the applicant to confirm her understanding that the applicant did not wish to pursue any of the withheld details bar records 15 and 17, and invited the applicant to let her know if she wished to pursue any other records in full or in part. The applicant relied that this was "fine".
The HSE released records 15 and 17 to the applicant on 26 September 2013, subject only to redaction of a name of a person other than the applicant's son. In a letter dated 31 October 2013, Ms Lyons explained to the applicant why she considered the name to comprise personal information and to be exempt from release. Ms Lyons said that she was assuming the name could now be excluded from the review, similar to other withheld names, and, thus, it seemed that no further action was necessary in relation to the HSE's decision to fully or partially withhold certain records. The applicant did not take issue with this approach in her various subsequent contacts with the Office, and I have proceeded accordingly.
In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; and to details of various contacts between this Office and the applicant. I have had regard also to the provisions of the FOI Act.
Scope of the Review
Having regard to the preceding, the scope of this review is confined to the sole issue of whether or not the HSE has justified its refusal of the additional records the applicant contends should be on her son's file, on the basis that it has taken reasonable steps to look for any such records that may exist. It should be noted that the request only encompasses records that were created up to the date of the request.
The applicant has raised many issues in her correspondence that are not capable of review by this Office. For instance, the Office has no remit to investigate, or make any findings on, the applicant's contentions that her son was not properly assessed, diagnosed, treated, or supported by the various personnel he attended in the Unit. Neither has the Office any remit to examine whether or not the applicant's complaints were followed up properly, or whether or not there were breaches of patient confidentiality. Furthermore, neither the FOI Act nor this Office has any role where records are not as detailed as an applicant might consider they should be.
It is the HSE's position that it has taken all reasonable steps to locate further records relating to the applicant's son, and, effectively, is relying on section 10(1)(a) of the FOI Act in refusing to release such records. Section 10(1)(a) provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable.
The Commissioner's role in a case involving section 10(1)(a) does not require him to search for records (the judgment of Mr Justice Quirke, in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)refers). Furthermore, in any case involving section 10(1)(a), a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. Neither is this Office likely to require a public body to continue searching indefinitely for further records of relevance to a request, regardless of the importance to any applicant of the records he or she is seeking (the applicant's reasons for seeking the records must be disregarded, as required by section 8(4) of the Act).
The applicant has, at various stages in this review, described certain records that could be on her son's file, as well as records that she would expect to be on the file. Some of the records contended to be missing have, further to this Office's examination of the records, proved to be on the file, albeit lacking the level of detail clearly expected by the applicant. However, other records said by the applicant to be missing, which I am satisfied are not on the file, are: a letter she said had been sent to her in 2004 or 2005 by Dr A of the Unit, regarding one of her son's attendances; records of communications between Dr A and/or Dr B of the Unit and her son's Special Educational Needs Organiser (SENO), which she said the SENO had told her took place in 2008 and 2011; and records of a meeting between Dr B and her son's school in August-September 2011.
In addition, this Office's examination of the various records on the applicant's son's file noted the lack of: records of an appointment that appears to have been attended by the applicant's son in early December 2011, at which Dr B and a another staff member (Nurse C) were present; and letters (or records of other forms of notification) scheduling appointments for October and December 2011.
This Office's letter to the applicant of 31 October 2013, which I see no reason to repeat at length in this decision, outlined the HSE's description of the searches conducted by the Unit for further records relating to her son. In summary, the HSE described how the Unit creates and stores patient files and how it had located the applicant's son's file, and gave a general description of the Unit's records management policy. It said that, while the Unit's staff had examined another file that would seem most likely to contain any misfiled records concerning the applicant's son, it was found to contain no records that related solely to him. Generally speaking, I consider such steps to have been reasonable.
The HSE said that Dr A has retired, and that Dr B and Nurse C have resigned from the HSE, and that their personal computers were wiped of any personal data, and their office space cleared of any personal records, when they left the Unit. It has not asked these former staff if they recalled creating any additional records that they might not have stored in accordance with the Unit's records management policy.
The HSE says that, while it has contacted retired staff and personnel who have left its service in the past in order to establish possible locations for archived records (which I would take to be records much older than those in the case at hand), this is not an issue in the applicant's son's case. It clearly maintains that it has carried out reasonable searches for any further records relating to the applicant's son that might exist, and that the taking of "reasonable steps" for the purposes of section 10(1)(a) of the FOI Act does not require it to contact Drs A or B or Nurse C to establish if they recall whether or not particular records were created in the first place, or where they might now be stored.
I would not rule out the possibility that, in certain cases, it may be a "reasonable step" for a public body to contact former staff for the purposes of locating missing records, such as in cases where a current file has gone missing in its entirety without trace. However, in the case at hand, the HSE has located a hard copy file for the applicant's son, which appears to have been appropriately filed. I also consider there to be a very low chance that the former staff concerned will recall specific events from two (or more) years previously in the first place, never mind recalling whether or not they created specific related records or where they might have subsequently filed them. In any event, given the Unit's procedures for clearing any paper or electronic records of former staff upon their departure, it would seem unlikely that there would still exist within the Unit any additional records concerning the applicant's son that might have been created but not filed by Drs A or B or Nurse C. Accordingly, I accept the HSE's argument that it has conducted reasonable searches for records of relevance to the applicant's request in this case, notwithstanding that it has not contacted Drs A or B or Nurse C.
Having regard to the above, I accept that the HSE is justified in refusing to release further records of relevance to the request, on the basis that they cannot be found after reasonable steps have been taken to look for such records. I find that section 10(1)(a) of the FOI Act applies accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of further records of relevance to the request.
Right of Appeal
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an 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.