Whether the Department was justified in deciding to refuse access to the minutes of a Local Monitoring and Review meeting under section 10(1)(a) of the FOI Act, on the basis that the records do not exist

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 18 September 2014 the applicant made an FOI request to the Department for records held by the Irish Prison Service in relation to "The minutes of a local monitoring and review meeting which took place on or before 24th October 2013, which lead to my suspension from the detail".

In its decision of 23 October 2014 the Department refused this request under section 10(1)(a) of the FOI Act on the basis that no records of the kind requested could be found. The applicant requested an internal review of this decision on 24 October 2014. The internal review decision was issued on 18 November 2014. The internal review decision stated that "no minutes exist in the Department in relation to the 'Monitoring & Review Meeting' which took place on/before 24 October 2013".

The applicant applied to this Office for a review of this decision of the Department on 23 November 2014. Following correspondence with the applicant, this Office subsequently accepted the application for review of the Department's decision on 16 December 2014.

I note that Mr. Art Foley of this Office emailed the applicant with details of the searches carried out by the Department to locate the minutes of the meeting and indicated to the applicant that the decision of the Department was justified in his view. The applicant indicated in his response that he was unhappy with the method of record keeping employed by the Department, but did not make any comment in relation to this review proceeding to a decision. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Department and the applicant, details of contact between this Office and the applicant, and details of contact between this Office and the Department.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

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

Preliminary Matters

It is important to note that this Office's remit does not extend to adjudicating on the manner in which public bodies carry out their functions generally. Our role in this case is to review the Department's decision in relation to the records which were requested under the FOI Act. Furthermore, I should explain that in implementing the terms of the FOI Act, this Office is primarily concerned with ensuring access to existing records in accordance with the provisions of the Act. The Act does not provide a right of access to records which ought to exist, nor does it require a public body to create a record.

Analysis and Findings

The Department's position is that the requested records do not exist or cannot be found. Accordingly, section 10(1)(a) of the FOI Act is relevant.

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

This Office'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 the 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 the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

In its submissions to this Office the Department stated that no minutes exist of the meeting in question. The Department stated that it is the practice of the attendees at Local Monitoring and Review Meetings that no minutes be produced of the meetings unless they relate to specific actions to be performed. In this instance, the Department stated that as no action points arose, no minutes were produced of the meeting.

The Department further stated that, in an effort to source any records produced on foot of the meeting, it contacted all attendees to request any notes that had been made at the meeting. No record of the meeting has come to light as a result of this request. All persons in attendance at the meeting indicated that they did not take any notes, for the reason that no action points arose as a result of the meeting. Furthermore, the Department advised that there is no area within the public body in which records of this nature would be retained, other than within the notes of the attendees, as no minutes were produced and circulated.

Section 10(1)(a) of the FOI Act provides that a public body may refuse to grant a request for information if the record at issue does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I find, from the information available to this Office, that reasonable steps have been taken to produce the record requested and therefore the Department was justified in its decision.

Decision

Having carried out a review under section 34(2) of the FOI Act, 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. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator