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Whether the HSE was justified in its decision to refuse access to a fax the applicant sent to a named doctor's office on the ground that the record cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 30 June 2015 the applicant submitted a request to the HSE for a copy of her medical chart, a copy of a letter dated 3rd April 2013 sent to her by a named doctor, a copy of a letter dated 2016 from a second named doctor and her faxed reply to that letter.

On 22 July 2015 the HSE part granted the request. It refused access to the reply the applicant sent by fax under section 15(1)(a) of the FOI Act, on the ground that the record does not exist or cannot be found. On 17 August 2015 the applicant sought an internal review of the HSE's refusal to grant access to her faxed reply. On 3 September 2015 the HSE issued an internal review decision in which it affirmed its original decision. The applicant applied to this Office for a review of that decision on 10 September 2015.

I note that during the course of the review, Mr Benjamin O'Gorman of this Office informed the applicant of the searches the HSE conducted in attempting to locate the record and of his view that the HSE was justified in its decision to refuse the request on the basis that the record could not be found. The applicant indicated that she did not accept the explanation given by the HSE as to why the record could not be found. Therefore, 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 HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the applicant's request for her faxed reply to a named doctor under section 15(1)(a) of the FOI Act on the ground that the record cannot be found.

Preliminary Matters
During the course of this review the applicant raised a number of matters which did not appear to directly relate to this review. Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. Furthermore, this Office also has no role in adjudicating on how FOI bodies carry out their functions generally or to investigating complaints against FOI bodies.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in cases 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 consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.

In its submission to this Office the HSE provided comprehensive details of the searches it undertook in an effort to locate the record at issue. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches. Therefore, while I do not propose to repeat those details in this decision, I confirm that I have had regard to them for the purposes of this decision. While the applicant may not be satisfied with the HSE's responses, the position of the HSE is that it cannot find the faxed reply the applicant is seeking. Having reviewed the steps taken by the HSE to locate the record at issue, I am satisfied that the HSE has taken all reasonable steps to locate the record sought and I find that section 15(1)

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant's request under section 15(1)(a) of the FOI Act.

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.

Stephen Rafferty
Senior Investigator