Whether the Department was justified in refusing the applicant's request for records held on his file relating to the Farm Modernisation Scheme under section 10(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts

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

The applicant submitted a request to the Department on 23 July 2014 seeking access to all records in his specified file relating to the Farm Modernisation Scheme (FMS), and quoting his herd number. The applicant stated in his application that his application under the scheme would have been approved in 1980. On 21 August 2014, the Department issued its decision stating that the records requested could not be found after all reasonable steps had been undertaken to ascertain their whereabouts.

The applicant was not satisfied with this decision and applied for an internal review on 2 September 2014. The Department issued its internal review decision on 25 September 2014, upholding its original decision. The applicant applied to this Office for a review of that decision on 15 January 2015.

During the course of the review the Department, in submissions to this Office,detailed the searches carried out for the records requested by the applicant and stated that these records had been destroyed and so did not exist.

Mr. Christopher Campbell of this Office contacted the applicant on 6 May 2015 and informed him of the Department's position and conveyed details of the searches carried out. The applicant, in his response of 11 May 2015, indicated that he was not satisfied with this response. Accordingly, I consider that this review should be brought to a close by means of a formal binding decision.

In conducting this review I have had regard to the submissions of the Department on this request and its communications with this Office and with the applicant, to the communications of the applicant with the Department and with this Office, and to the provisions of the FOI Act.

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

Analysis and Findings

Section 10(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. 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 and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In its reply to queries from this Office, the Department stated that files relating to the FMS would have been created and retained in the Farm Development Services Offices, which were the local offices at that time. The District Supervisor in Longford stated that following a full search of all areas of the local office the file could not be found as it was over 30 years old and was most likely shredded as no files relating to the scheme were found. No evidence was found of any listing indicating that the files were sent to any other location for storage. The Department acknowledged that it misquoted the applicant's herd number in its decision and internal review decision, as pointed out by the applicant, but it states that it carried out searches by area and by name and so the outcome of the searches was not affected by this error.

In his application to this Office, the applicant stated that the file was "at hand" when he was considering the Farm Waste Management Scheme with a Mr McDermott in 2007. In response, Mr McDermott, District Superintendent, stated that the FMS files were long disposed of before he took charge of the Longford area and that files from different schemes would not have been merged as each scheme has its own individual files. Having regard to the details of the Department's submissions and in the absence of evidence to suggest otherwise, it appears likely that the records sought by the applicant no longer exist. Accordingly, I find that the Department was justified in deciding to refuse the request under section 10(1)(a) of the FOI Act.

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.

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