Whether the Department was justified in its decision refuse access to further records relating to the applicant on the grounds that the records do not exist or cannot be found after all reasonable steps have been taken to locate them.

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

Background

On 29 December 2010 the applicant made a request to the Department for all information relating to him held by the Department in any of its Offices in relation to a number of schemes for the years 1997 to 2010. On 24 February 2011, the Department informed the applicant of its decision to release all relevant records and supplied the applicant with a schedule of 102 records. On 17 March 2011, the applicant appealed the Department's decision. On 5 July 2011, the Department varied its original decision and released an additional 12 records which it had located. On 19 May 2011, the applicant contacted the Office of the Information Commissioner and sought a review of the Department's decision.

I note that Mr Derek Charles, Investigator, outlined his preliminary views to the applicant on 23 April 2013 and invited a response within three weeks. As no response has been received from the applicant, I have decided to conclude this review by way of a formal binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as detailed above, to correspondence between this Office and the applicant, particularly Mr Charles' letter of 23 April 2013, and to correspondence between this Office and the Department. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to further relevant records under section 10(1)(a) of the FOI Act on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

While no section of the FOI Act has been cited, the Department appears to be relying on section 10(1)(a) of the Freedom of Information Act, in refusing access to additional records. Section 10(1)(a) provides as follows:

"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 Commissioner's role in cases such as this is to review the decision of the public 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. 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. 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. available on this Office's website at www.oic.ie).

The Department stated in its report that when an applicant joins the REP scheme a paper file with a unique REPs number is set up and all correspondence pertaining to the applicant is kept on this file. The Department stated that it has procedures in place regarding the upkeep of REPs files and staff are aware that no records are to be deleted or removed from this file. Departmental files, while active, are kept in the relevant local office, which in the applicant's case was the Department's office. Inactive files are archived and kept in storage depots. All file movements are recorded on the file tracking system, including archive and storage decisions.

The Department's report further stated that, in addition to the paper file, there is a REPs computer system, on which the details of the applicant's REPs applications are input. This file would mirror the paper-held details on the REPs plan and is used for making yearly payments and for file tracking. All other correspondence is placed onto the paper file. Once these files are available, a full picture of the applicant's participation in the scheme and any issues relating thereto are readily accessible. The Department has outlined the following searches which have taken place over the course of this FOI application:

The file tracking on the REPs system was used to ascertain the location of the paper file.

• Files were then requested from the local office.
• When files were received, they were checked to ensure that all procedures were followed i.e. all necessary forms were on the file.
• The files were then copied and a copy sent to the applicant, along with a schedule, listing each record on file.
• All officers connected with the file were contacted and requested to complete a search of their saved and deleted emails.
• Searches were carried out by name, address, REPS number/ Herd number and variations of these numbers.
• Each Officer confirmed that they had conducted an electronic search of their saved and deleted emails and copies of emails retrieved during the search were sent to the decision maker.
• A copy of these emails along with customer details held on a Departmental database were sent to the applicant along with a schedule, listing each record on file.

The Department has indicated that similar searches have taken place with respect to the applicant's Single Farm Payment scheme file, Area Based Compensation scheme file and the Afforestation scheme file.

Subsequent to the provision of the above information the Department was requested by this Office to retrieve outstanding emails from the Departmental backup tapes.

The Department informed this Office that its IT system had changed in 2009 and that the retrieval of old emails would require significant work in rebuilding the old system and then searching the old backup tapes, however, the Department undertook to initiate this body of work. During the course of its enquiries the Department informed this Office that the process was progressing very slowly, that its IT Division had located the servers that the users had their email accounts on for 2006, 2007, 2008 and 2009.

The Department's server team was required to rebuild the 2005 environment (which required old hardware and which proved to be very time consuming). The email team was then required to build the old email infrastructure to recover the 2006 - 2009 emails and this process proved very time consuming. The backup team were then required to restore the required tapes one at a time onto the infrastructure. The Department reported that this time consuming task was being done in conjunction with the normal day to day support tasks of its IT Division. The Department estimated that there were several weeks of work to be done to bring this process to a conclusion.

In its most recent report the Department has stated that the retrieval of all emails from 1997 to 2010 had presented its IT Division with a number of difficulties. Initially the search concentrated on 2009 and 2010, three additional records were discovered and release to the applicant. The search of the Department's email database continued and at this stage additional files have been searched for the years 2005 to 2008, however no further relevant records have been found. The Department has stated that the email restoration to date has involved weeks of work which has impacted on the usual daily tasks and routines of the IT Division. Based on the experience of the email restorative and search work for the years 2005 to 2010, the email infrastructure for 1997 to 2004 will the Department states prove even more difficult and time consuming to restore as it is based on very old hardware and systems. In view of the amount of time consumed by this project to date the Department has decided not to reconstruct the email environment for the period 1997 to 2004. I am of the opinion that the searches conducted to date by the Department to date have been reasonable and I agree that to expect the Department to continue to reconstruct its old IT email system, in light of the number of additional records discovered, would be unreasonable.

The Department has outlined the extent of the work its IT section has carried have out for this application and the extent of the searches it has conducted regarding the applicant's Rural Environmental Protection scheme (REPs) file, Single Farm Payment scheme file, Area Based Compensation scheme file and Afforestation scheme file. The Department states that it can find no further records in relation to the applicant. The applicant has provided no evidence to suggest that further relevant records should exist. Therefore having regard to the details of the searches undertaken for the relevant records, I am satisfied that the Department has carried out adequate and reasonable searches for the records that have been requested by the applicant and accordingly, I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal to release additional records on the grounds that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

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. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
8 July 2013