The Senior Investigator accepted the Department's assertion that the record does not exist and affirmed its decision that section 10(1)(a) of the FOI Act applies.

Case Summary

Whether the Department is justified in its decision to refuse access to a certain record on the basis that it does not exist and that the exemption provided for under section 10(1)(a) of the FOI Act therefore applies.

Date of Decision: 23.11.2010

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

Background:

On 23 June 2009, the Applicant made an FOI request to the Department seeking the name of the person who had made a report to it concerning the spreading by him of slurry on his lands. The Department in its decision of 30 June 2009, refused the request on the grounds that the information had been given to it in confidence and was therefore exempt in accordance with section 26 of the FOI Act. On 9 July 2009, the applicant applied for an internal review of the Department's decision.

The Department issued its internal review decision on 22 July, 2009. Again it refused the Applicant's request but on this occasion it declared that the complaint was made by way of an anonymous phone call, that no record of the identity of the person who made the phone call exists and that the exemption provided by section 10(1)(a) therefore applies. The Applicant applied to this Office for a review of the Department's decision on 14 December, 2009. In his submission he pointed out the apparent contradiction between the two exemptions quoted by the Department.

On 4 March 2010, the applicant was informed by this Office that, while it was agreed that the Department's use of the two different exemptions was inconsistent, this Office nevertheless accepted the Department's explanation in its internal review letter to him and was satisfied that section 10(1)(a) applies. On 15 March 2010, the applicant confirmed that he required a formal decision on the matter. I am therefore now progressing this review to a formal decision.

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,
• 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 ("the Commissioner") to conduct this review).

Scope of Review

In view of the foregoing, this review is confined to whether or not the Department is correct, in accordance with section 10(1)(a) of the FOI Act, in refusing the Applicant's FOI request on the basis that a record of the identity of the person who made the telephone call to the Department concerning the Applicant's spreading of slurry on his land does not exist or cannot be located after all reasonable steps have been taken to ascertain its whereabouts.

Submissions

.

Findings

Preliminary Issue

As confirmed in previous correspondence from this Office to the applicant, I fully accept that it is inconsistent for the Department to argue in its initial decision that the information sought is confidential and therefore exempt in accordance with section 26, and to subsequently, in its internal review, assert that the record does not exist and is therefore exempt under section 10(1)(a). However, again as I have already stated, while I consider that the Department erred in its initial decision, this Office is obliged to consider the Department's internal review decision and, in so doing, to decide whether or not any record of the information requested by the Applicant exists and if it does, whether he is entitled to access it under the FOI Acts.

Analysis and Findings

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."

I consider it appropriate to outline from the start 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."

In response to a request from Mr. Colin Stokes, an Investigator with this Office, the Department provided details of the steps it had taken to locate any relevant records. It confirmed that it had retrieved its 2001 files from its storage facility in Tullamore but that a thorough search of these files had failed to locate any record of the particular complaint. A similar search of current documentation and correspondence had also failed to locate any records. In addition, the Department contacted the now retired Navan District Veterinary Officer who had contacted the Applicant about the complaint, but again, no record could be found. While it is never satisfactory that a record which arguably ought to exist cannot be located, I am satisfied that the Department has demonstrated to this Office, that no record could be found after all reasonable steps had been taken to do so. The Department also made the point that the investigation of this complaint took place during the height of the Foot and Mouth alert of 2001. At that time the Department's resources were stretched to the limit and time constraints would have militated against the keeping of written records particularly in cases where, as in this case, investigation had confirmed that there was no wrongdoing or cause for concern.

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

23 November 2010