Whether the Hospital was justified in refusing access to medical and connected records under section 15(1)(a) of the FOI Act

08 July 2022

Background

This case concerns an FOI request for medical and connected records which was made to South Infirmary Victoria University Hospital (the Hospital). The request was made on behalf of a patient by her representative who is the applicant in this review. In a request dated 12 August 2021, the applicant sought access to the following records dating from 1 January 2019 to the date of the request:

1. The patient's medical and general and connected records held by the Hospital;
2. Any report external or internal of consultations with Consultants;
3. Any notes of consultations with Consultants;
4. Records concerning information the applicant requested in correspondence of 22 December 2020;
5. Records concerning information the applicant requested in correspondence of 21 January 2021;
6. Records of the appointment with (a named Consultant) on 20 November 2020 including those made at or subsequent to the appointment by the Consultant and the Nurse present at the appointment and any other representative of the Hospital in relation to that appointment and any connected matter;
7. A copy of the Hospital's in-patient policy;
8. A copy of the Hospital's outpatient policy;
9. A copy of the Hospital's prioritisation policy in relation to inpatient procedures;
10. A copy of the Hospital's prioritisation policy in relation to outpatient procedures;
11. A copy of the Hospital's inpatient waiting lists policy;
12. A copy of the Hospital's outpatient waiting lists policy;
13. A copy of each outpatient end of week/end of month waiting list which included the patient;
14. A copy of each outpatient end of week/end of month waiting list which did not include the patient;
15. Where a record was requested as above and none exists or none exists in full, a copy of the part of a record or the data making up the record requested.

On 2 September 2021, the Hospital part-granted the applicant's request. The Hospital released records relevant to parts 1-9 and 11-12 of the request. It refused access to records relevant to the parts 10, 13 and 14 of the request under section 15(1)(a) of the FOI Act on the basis that the records concerned do not exist. On 6 October 2021, the applicant sought an internal review of that decision.  On 22 October 2021, the Hospital affirmed its original decision. On 28 October 2021, the applicant wrote to the internal reviewer setting out a number of grounds querying the internal review decision. On 8 November 2021, the Hospital replied to the applicant advising him of the external review process. On 11 November 2021, the applicant applied to this Office for a review of the Hospital's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Hospital and to the communications between this Office and both Hospital and the applicant on the matter.

Scope of Review

The applicant's original FOI request was specific in listing categories of records, as set out above, to which he wished to acquire access. The jurisdiction of this Office is based on the wording of the original FOI request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request. The scope of this review is confined to whether the Hospital was justified in refusing to release additional records falling within the scope of the applicant's request on the basis of section 15(1)(a) of the FOI Act.

Preliminary Matters                                                                        

The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars of the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the applicant gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. The Act does not require a consideration of the public interest in section 15(1)(a) cases.

Analysis and Findings

Section 15(1)(a) - Reasonableness of Searches

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 the 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.

Submissions of the Parties

As outlined above, the applicant wrote to the Hospital on 28 October 2021 and set out a number of grounds on which he sought to query the internal review decision. He attached this letter to his application to this Office. In his letter, the applicant stated that his FOI request was not confined to personal records and his request for notes of consultations with Consultants was not limited to routine notes or notes made in the patient's chart as referenced in the internal review decision. The applicant requested a copy of the Hospital's policy relating to the attendance of chaperones at consultations with Consultants.  He stated that the Hospital ought to have provided a copy of a priority waiting list for treatment listing the patient. He stated that references to other patients contained on a waiting list could be redacted as necessary. The applicant stated that the decision maker was clearly confused or in doubt as to what records and information were being requested and the decision maker should have assisted him in clarifying or refining his FOI request.

During the review process, this Office's Investigator requested the Hospital to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries regarding its record-management practices. The Hospital's response to these queries was provided to the applicant and is set out in summary here.

In its submissions, the Hospital stated that its decision maker was aware that the FOI request was not confined to personal records and it says it provided both personal medical records and also non personal records such as hospital policy documents to the applicant. The Hospital stated that it did not limit notes of consultations with Consultants to routine notes or notes made in a patient's chart and it says that it received confirmation from the relevant Consultant and the Nurse who attended the clinic as a chaperone, that they do not hold any additional relevant records. The Hospital states that the applicant did not request its chaperone policy in his original FOI request. The Hospital confirmed that it does not have a stand-alone policy, however it provided the applicant with a copy of the notice which is displayed in the outpatient rooms in relation to requesting a chaperone during examination.

The Hospital stated that when an initial referral letter was received, the patient was placed on waiting list on 5 May 2020 and this was triaged as routine. It said that when a second referral letter was received on 3 September 2020 the outcome was re-triaged to urgent. It said the patient was booked for an outpatient appointment on 23 October 2020 and attended on this date. It said the patient attended a follow up outpatient appointment on 20 November 2020. The Hospital said that the Consultant requested that the patient be put on a holding list pending the outcome of a second opinion. It said that the patient is currently not on a priority list as patient's cannot be prioritised whilst awaiting a second opinion until review following this second opinion.  The Hospital said that after a patient attends an outpatient appointment, their name is no longer reflected on an outpatient waiting list, it said that the patient's name does not exist on the outpatient waiting list any longer. It said that the patient's name is on a holding list and it said it has provided the applicant with a screen shot of this holding list which refers to the patient. The Hospital said that the FOI request received did not need clarification and all of the patient's medical records were released with the policies requested at the time.

The Hospital stated that searches were carried out in the medical records library and a full copy of all medical records pertaining to the patient was released on 9 September 2021.  The Hospital stated that trained medical records staff retrieved medical records from storage on site. It stated that a search for the patient's medical records was carried out manually using patient's Regional Identifier number. The Hospital states that that the IMPS computer system used by the Hospital was used in conducting a search by the FOI Officer, the Administration Services Manager, Booking and Validation Staff and the Medical Records Department. It stated that this is the only location where an out-patient list would be kept. The Hospital stated that following the request for focused submissions from this Office, it identified seven additional records. It stated that some of these records, for example its chaperone notice, were not referenced in the original FOI request. However, it provided copies of these records to this Office and subsequently to the applicant. 

Following receipt of the additional search details, the applicant provided further comments to this Office. He stated that his FOI Request was for "the patient's medical, general and connected records." He stated that further connected records were located during the review process including a booking form and a screenshot of a holding list. He contended that these further connected records should have been located in response to his FOI request. The applicant also stated that the Hospital should have provided a list of all files searched, who carried out these searches and what records were in hardcopy/softcopy in its submissions. The applicant contended that there was a lack of candour by the Hospital/Consultant in not mentioning the holding list and in not explaining this process/procedure despite his best efforts to obtain a full picture of what their system is.

Findings

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

I note that the applicant is not satisfied with the decision of the Hospital/Consultant to remove the patient's name from a waiting list and to put the patient on a holding list whilst awaiting a second opinion. As noted above, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally. I cannot, therefore, make any findings on how the Hospital carried out its functions in relation to removing the patient from a waiting list and placing her on holding list.

I understand the applicant's position that further records ought to exist. It is my view that the Hospital provided reasonable responses to these points.  As set out above, the Hospital followed up the specific points raised by the applicant in his letter of 28 October 2021 and provided answers to specific questions during this Office's investigation, all of which were provided to the applicant.  It would have been preferable for all relevant records to have been identified and released at the time of the Hospital's first instance decision. However, I note that certain additional records located during the review were not requested by the applicant in his original request.

Taking into account the search details provided by the Hospital, its responses to the applicant's points, and to this Office's queries, I am satisfied that the Hospital has taken all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. In light of the above, I find that section 15(1)(a) of the FOI Act applies on the ground that no further relevant records exist or can be found after reasonable searches were conducted.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Hospital's decision, I find that 15(1)(a) of the FOI Act applies to the applicant's FOI request.

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.
 

Deirdre McGoldrick
Senior Investigator