The Senior Investigator found that the Department is justified in its refusal of the records sought on the basis that such records cannot be found and that section 10(1)(a) of the FOI Act applies.

Case Summary

Whether the Department is justified, under section 10(1)(a) of the FOI Act, in its decision to refuse access to certain records on the basis that the records cannot be found.

Date of Decision: 29.04.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (the FOI Act) to the Information Commissioner.

Background:

In a letter dated 1 September 2009, the Applicant's solicitors, Wilkie and Flanaghan, requested FOI access to records relating to the transfer of a specific Herd Number to the applicant's brother. The Department issued its decision on 3 November 2009; that decision refused the Applicant access for the reason that, having carried out a thorough search, the requested records (relating to the transfer of ownership of the specific Herd Number) could not be found.

The Applicant's solicitors applied for an internal review of the Department's decision on 24 November 2009.

The Department issued its decision following internal review on 15 December 2009, which upheld its original decision. The Applicant applied to this Office for a review of the Department's decision on 28 December 2009.

In his original request, the Applicant sought access to any documentation relating to the transfer of ownership of the Specified Herd Number. He contended that the Herd No. in question had been in his own name after the death of his father in 1980, until 1989, but at some point in time he contends that it was then transferred over to his brother's name. The Applicant sought any records showing such a transfer of ownership.

In conducting this review, I have taken account of:

• the correspondence which passed between the applicant and the Department in relation to his FOI request;
• the Department's conclusions on the matter;
• the applicants application to this Office and his submissions to this Office, including his submission of 16 April 2010;
• the detailed enquiries and correspondence between the Department and this Office, and,
• the provisions of the FOI Act generally.

Conducted in accordance with section 34(2) of the FOI Act by Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of Review

I note that Mr. Ciarán O'Donohoe, Investigator with this Office, previously advised the Applicant that this review is confined to access to records sought in the Applicant's original FOI request of 1 September 2009 (i.e. any documentation concerning the transfer of ownership of the specific Herd Number in question) and cannot be extended to cover additional records referred to by him in subsequent correspondence after this date.

I also wish to re-iterate the point made by Mr. O'Donohoe that in accordance with section 8(4)(a) of the FOI Act, in making a decision, the Commissioner is precluded from taking into account "any reasons that the requester gives for the request".

It should be further noted that it is not part of the function of the Information Commissioner to adjudicate on how public bodies perform their functions generally or in this case on deciding in deciding upon who should rightfully own the Herd Number in question. The Commissioner's review extends only to the provisions of the FOI Act and whether or not the Department is correct in refusing the applicant access to records on the basis that they cannot be located after all reasonable steps have been taken to ascertain their whereabouts, in accordance with section 10(1)(a) of the FOI Act.

Submissions

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Findings

Analysis and Findings

Application of Section 10(1)(a)

Section 10(1)(a) of the FOI Act provides that:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The issue which must be addressed in this review is whether the Department's decision to refuse access to the records pursuant to section 10(1)(a) is justified. I wish to clarify the Information Commissioner's role in cases such as this where a public body has decided that the records requested cannot be found or do not exist. Occasionally applicants may expect the Information Commissioner or her officials to carry out a search for the records in question. However, the Information Commissioner considers that her role in these cases is one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, she must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. The Information Commissioner's role is to decide whether the decision maker has had regard to all the relevant evidence and if so, whether he or she was justified in coming to his/her decision in the case.

It should be noted that the Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) where he said " I am satisfied also that the respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

It is noted that the Department is not denying that such a record may have existed at some point in time and by way of possible explanation it advised this Office that "in general, most areas within the Department hold files for a 7 year period. The obligations which the Department must meet are those set out in the Statute of Limitations Act 1957 which for actions in tort are 6 years. As a general rule we keep any such records for one additional year in case of the issue of any summons. With regard to TB2/ER1 documents [transfer of ownership dockets], however, we would consider it good practice to hold onto it indefinitely. Unfortunately, in the case of [the specified Herd Number], as pointed out to [the applicant] at the very outset, we have no transfer docket on the file. I can only conclude that in this instance the document was inadvertently shredded at the time of pruning/archiving".

In response to a request to do so from Mr. O'Donohoe, the Department provided considerable detail on the steps taken by it in its attempts to locate the record/s which were sought by the applicant. In his preliminary views letter dated 9 April 2010, Mr. O'Donohoe relayed the Department's position to the applicant. I do not intend to repeat the content of the preliminary views letter here but, in summary the Department advised this Office that it had:

• Located and searched the Herd File in the District Veterinary Office. These Files are stored by herd number.
• The Department prune files occasionally and archive certain old documentation onto files which are stored off-site. The archived files are stored by herd number. The Department advised this Office that it had located and searched the archived file for this herd number.
• The Department assured this Office that no other file exists which could contain such a record.
• Testing vets would not be given access to Herd Files.
• A search was conducted in the National Livestock Office and no relevant record was found.

While it is never satisfactory that a record which probably ought to exist cannot be located, I am satisfied that the Department has demonstrated to this Office, as indeed outlined to the applicant by Mr. O'Donohoe in his preliminary views letter of 9 April 2010, that the record could not be found after all reasonable steps have been taken to ascertain its whereabouts.

Therefore, I am satisfied that it is reasonable to conclude, in the light of the efforts made to locate them, that, regrettably, this record cannot be found. I find, therefore, that the Department's decision to refuse the applicant's request under section 10(1)(a) of the FOI Act is justified.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.

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. Any such appeal must be initiated not later than eight weeks from the date of this decision.

Seán Garvey

Senior Investigator

29 April 2010