Whether the Department was justified in refusing to release further records relating to the banking sector's use of private investigators on the ground that no such records exist or can 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 29 October 2015, the applicant made a request to the Department for access to records relating to the banking sector's use of private investigators to build financial profiles of individuals, relating to him or in general. He particularly sought records relating to whether any bank was using illegal or illicit means to build such profiles and what actions the Department had taken in response. On 1 December 2015, the Department granted access to eight records, seven of which were subject to the redaction of personal information of third parties. It identified one additional relevant record which it did not release on the ground that it was already publicly available.

On 6 December 2015 the applicant requested an internal review of the Department's decision as he was of the view that further records relating to his request should exist. On 15 December 2015, the Department issued a decision affirming its original decision. However, for the sake of completeness, it released one additional record which was created after the applicant's initial request. The applicant sought a review by this Office of the Department's decision on 15 December 2015.

I note that Ms Sandra Murdiff of this Office contacted the applicant on 16 February 2016 and provided him with details of the searches undertaken by the Department to locate records relating to his request. She also informed him of her view that the Department was justified in deciding that no further records exist or could be located after all reasonable steps had been taken to locate them. The applicant indicated that he was not satisfied with her view. Accordingly I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between the Department and the applicant as set out above, to correspondence between this Office and the Department and to details of various contacts between this Office and the applicant.

Scope of Review

This review is solely concerned with whether the Department was justified in deciding that no further records relating to the applicant's request for records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record 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 FOI 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 FOI 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 FOI body, on the basis of which the FOI 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.

In a submission to this Office dated 16 February 2016, the Department stated that it had not been actively engaged in relation to the subject matter of the request. It also stated that the Minister for Finance had always been clear that he could not intervene in cases between individuals and their bank, nor in operational matters of the banks. It further stated that it had no reason to believe that any bank would have sent any records within the scope of the applicant's request to the Department. Notwithstanding this, it provided details of the searches undertaken to locate relevant records within the Department, including electronic searches. It explained that material gathered for a Parliamentary Question (PQ) answer which was released to the applicant in response to his request was sourced from the Central Bank and it had not released this as it did not consider it to fall within the scope of the applicant's request. Having reviewed this record, I am satisfied that the information contained in this record has already been released to the applicant in Record No. 8, the PQ response dated 4 December 2014. The Department also stated that it informed the applicant that a number of other FOI bodies, including the Department of Justice and Equality, the Department of the Taoiseach, the Data Protection Commissioner and the Department of Social Protection may hold records relating to his request. In essence, the Department's position is that all relevant records have now been located and released to the applicant, in full or in part and that no further records exist or can be located once all reasonable steps had been taken to ascertain their whereabouts.

In his submission to this Office dated 25 February 2016, in response to Ms Murdiff's email wherein she set outlined the details of the steps being taken by the Department to locate all relevant records, the applicant stated that he didn't believe the Department's explanations. However, notwithstanding the applicant's belief that more records exist which have not been released to him, he has not provided any evidence to suggest that this should be the case. Accordingly, taking all of the above into consideration, I am of the view that the Department's decision to refuse to release further records to the applicant was justified, on the basis that no further records exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

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