Whether the HSE was justified in its decision to refuse the applicant’s request for access to additional records pertaining to the processing and analysis of her blood samples and related correspondence, other than those already released to her on the ground that no further relevant records exist or can be found

4 September 2020

Background

In Case 53286 (190036), I reviewed a decision taken by the HSE on the applicant’s request for access to records held by a named Hospital, namely:

1. All information pertaining to the processing and analysis of her blood samples at the Hospital in 2017.
2. Details of any correspondence and contact between any staff members involved in the analysis of her blood samples in 2017 and doctors at a named clinic between July 2017 and 7 November 2018.

As the applicant was of the view that she had not received all relevant records, the review was concerned with whether the HSE had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of her request.   In a decision, which issued on 21 November 2019, I concluded that the HSE had not taken all reasonable steps and annulled its decision.  I directed the HSE to conduct a fresh decision making process on the applicant’s request.

On 30 January 2020, the HSE issued its fresh decision, granting access to a number of records relating to part 1 and refusing access to records relating to part 2 under section 15(1)(a) of the FOI Act on the ground that no records were located.  It also noted that the Clinical Director for Diagnostic Services was willing to meet with her should she wish to discuss the matter.  On 6 February 2020, the applicant sought an internal review of the HSE’s decision, suggesting that there were additional records not received. She also submitted a number of related queries relating to the Hospital’s procedures. 

The applicant sought a review of the matter by this Office on 6 March 2020, as she had not received an internal review decision.  On the same day, the HSE issued its internal review decision, wherein it affirmed its original decision, outlining that no further records other than those previously released had been located.  It also provided responses to the applicant’s queries.  On 11 March 2020, the applicant informed this Office that she wished the review to proceed.

During the course of the review, the HSE provided this Office with details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed her of her view that the HSE was justified in refusing access to additional records on the ground that no further relevant records exist or could be found. The applicant subsequently provided a further submission to this Office and having regard to that submission I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.

Scope of this Review

This review is concerned solely with whether the HSE was justified in refusing access to additional records coming within the scope of the applicant’s request other than those already released to her on the ground that no further relevant records exist or can be found.

Analysis and Findings

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.

In submissions to this Office, the HSE provided details of the searches conducted to locate the records sought by the applicant.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, the HSE stated that the Hospital’s laboratory information system, iLAB, was searched, using the applicant’s name and date of birth as search terms.  It clarified that records scanned to its scanning system, DART, are directly linked to and accessed through iLAB.

In relation to tests performed internally at the Hospital, the HSE noted that test reports are transmitted electronically to GPs from the iLAB system via the Healthlink system.  However, in relation to tests performed externally at St James’s Hospital, it explained that the Hospital posts the test reports to GPs, of which there is no paper trail, and the only information transmitted from iLAB via Healthlink is a statement noting that a copy of the report has been sent to the requesting source.  The HSE stated that the Hospital does not have access to the data on Healthlink transmitted from iLAB.  In response to further queries from this Office as to how Healthlink functions, the HSE explained that it is used by GP’s to view patient results and that, as results are authorised, electronic messages are automatically enabled by iLAB, sent to a bridge server located at the Hospital, downloaded to Healthlink’s central database, and then accessed by GPs.

The HSE also stated the email accounts of five laboratory staff involved in the processing of the applicant’s tests, were searched by the ICT Department, using variations of the applicant’s name and initials as search terms.

The general thrust of the applicant’s arguments is that, having regard to the nature of the processing and analysis of her blood samples, additional records should exist.   The HSE’s position is that no further relevant records exist, apart from those already released. While the applicant may be unhappy with the HSE’s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist.

Having considered the details of the searches undertaken, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.  I find, therefore, that the HSE was justified in refusing access to any additional records on the ground that no further relevant 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 the decision of the HSE to refuse access to further records coming within the scope of 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