Mrs X and The Health Service Executive

• Judge: Elizabeth Dolan, Senior Investigator
• Judgment Date: 29 September 2015
• Case Outcome: The Senior Investigator affirmed the HSE's decision. She found it was justified in its decision to refuse access to the records sought by the applicant under section 10(1)(a) of the Act, on the basis that they do not exist or cannot be found after reasonable searches for the records have been performed.
• Court: Information Commission
• Record Number: 150166
• Respondent: The Health Service Executive

Whether the HSE was justified in its decision to refuse access to records relating to the applicant's late mother under section 10(1)(a) of the FOI Act on the basis that the records do not exist or cannot be found after reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to the HSE on 30 June 2014 for the medical records of her late mother, who passed away in 1945 in St. Camillus Hospital, Limerick. On 9 July 2014, the HSE issued a decision in relation to the applicant's request, in which it explained that although it had performed searches for records within the scope of the applicant's request, no records had been found. The HSE refused the applicant's request under section 10(1)(a) of the FOI Act.

The applicant sought an internal review of the HSE's decision on 14 July 2014. As no internal review decision was forthcoming from the HSE within the timeline set out in the FOI Act, the applicant sent a further letter to the HSE on 5 December 2014, inquiring as to the status of her request. On 17 December 2014 the HSE issued its internal review decision, which affirmed its original decision to refuse the applicant's request under section 10(1)(a) of the FOI Act, on the basis that no records existed or could be found. The HSE also apologised for the delay which the applicant experienced in the processing of her FOI request. The applicant submitted an application to this Office for a review of the HSE's decision on 4 June 2015.

Mr Art Foley of this Office wrote to the applicant on 14 August 2015, setting set out the searches which the HSE said it had performed in an effort to locate the records sought by the applicant together with details of its record management practices in relation to records of this kind. Mr Foley informed the applicant of his view that the HSE was justified in its decision to refuse access to the records sought on the basis that they do not exist or could not be found after reasonable steps to ascertain their whereabouts had been taken. I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review I have had regard to correspondence between the applicant and the HSE, to correspondence between the applicant and this Office, to correspondence between the HSE and this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned with whether the HSE was justified in its...