Case Number:150405

Whether the Department was justified in its decision to refuse access to an affidavit relating to a particular piece of land on the ground that such an affidavit cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 4 March 2015 the applicant sought access to all documents relating to the Single Farm Payment in connection with a specific piece of land, including any agreement or correspondence that contained his name, and any internal emails, memos or telephone messages. He also sought access to documents submitted in 2014 by other claimants containing his details.

In two separate decisions issued in early April, the Department informed the applicant that it had decided to grant the request. The applicant sought an internal review of those decisions on 1 May 2015 as he was not satisfied that all relevant records had been released to him. He stated that he had not received copies of particular emails, minutes of a meeting, or a particular affidavit that had been submitted by other claimants containing his name.

On 27 May 2015 the Department issued its internal review decision in which it granted access to additional records, including emails, that been inadvertently overlooked. It stated that it was unable to locate the affidavit sought. On 19 November 2015 the applicant sought a review by this Office of the Department's decision as he had not received the affidavit.

I note that during the course of this review, Mr Benjamin O'Gorman of this Office informed the applicant of the searches the Department conducted in order to locate the affidavit and of his view that the Department was justified in its decision to refuse the request on the ground that the record could not be found. The applicant indicated that he did not accept the explanation given by the Department as to why the affidavit could not be found. Therefore, I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant's request for an affidavit relating to a particular piece of land under section 15(1)(a) of the FOI Act on the ground that no such affidavit can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records 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 such cases 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 or 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 submission to this Office, the Department provided comprehensive details of the searches it undertook in an effort to locate the affidavit. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches. Therefore, while I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this decision.

During the course of this review the applicant indicated he disagreed with several aspects of the narrative the Department had provided, particularly in relation to a meeting between the applicant and the Department in January 2015. He contended that his daughter had been told about the affidavit during the course of a telephone conversation with a Department official and that several officials in the Department, including a member of the legal division, would be familiar with the matter and should be consulted. The applicant also queried whether the other individuals who had received payments from the Department on the basis of the affidavit had been consulted, or asked to provide the affidavit.

Mr O'Gorman sought clarifications from the Department about these matters. The Department indicated that it did not agree that its narrative was inaccurate. It stated that no payments had issued in relation to the piece of land in question on the basis of the affidavit and that it had searched the files of the other claimants on the piece of land. The Department explained that, in any event, the payments made to the other claimants were not based on the affidavit at issue, but rather on "satisfactory Land Registry documentation". It stated that it had consulted with the individual members of staff identified by the applicant. The Department said that the member of staff in the legal division had stated that he was aware of the matter but would have given no formal views on it, and that he was unaware of the meeting in January 2015. It stated that the other member of staff mentioned by the applicant had retired, but that it was not believed he had had the time to examine the file. The Department official who had mentioned the affidavit to the applicant fully accepted he had done so, and maintained that he had seen the affidavit at some point. However, the official emphasised to this Office that the Department had been unable to find the affidavit after extensive searches.

While the applicant is understandably disappointed with the Department's response, particularly given that at least one Department official recalls the existence of the affidavit, this review is limited to considering the steps taken by the Department to find the affidavit. Having reviewed the steps and searches undertaken by the Department to locate the affidavit, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of the affidavit and I find that it was justified in refusing access to that record under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse to release further records relevant to the applicant's request under section 15(1)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator