Case Number: 160020

Whether the Department was justified in refusing the applicant's request for recordings of certain telephone calls made at named Garda Stations for specified periods on the ground that they do not exist

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 15 September 2015, the applicant made a request to the Department for information relating to recordings of his telephone calls for two separate periods at two named Garda Stations. On 5 October 2015, the Department issued a decision refusing the request on the ground that no relevant records exist. The applicant sought an internal review of that decision on 20 October 2015. The Department affirmed its decision on 13 November 2015. On 11 January 2016, the applicant sought a review by this Office of the Department's decision.

During the course of the review, Mr Christopher Flood of this Office informed the applicant of his view that the Department was justified in refusing the request, having regard to the explanation it provided to this Office as to why it held no relevant records. However the applicant has indicated that he requires a formal decision on the matter. Accordingly, I have decided to conclude this review by way of a formal binding decision.

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

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing access to recordings of telephone calls identified by the applicant on the ground that no such records exist or can be found.

Analysis and Findings

Section 15(1)(a) provides that 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". In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence, and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records, along with miscellaneous other information about the record management practices of the public body, insofar as those practices relate to the records in question. 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.

In its submission to this Office, the Department explained that searches were carried out, including by reference to the document database in use and by using words, names etc. as search keys and that consultation with relevant staff members took place. It stated that it had not found any records relating to the request, nor would it have expected such to find such records because, in the normal course of its functions, it would not have access to records such as those sought. The Department further stated that the fact that searches were undertaken in response to the request should not be interpreted as suggesting that it has or had such access. It added that it has no function in the matter of the conduct of criminal investigations by An Garda Síochána or the prosecution of offences by the Director of Public Prosecutions.

During the course of this review, the applicant contended that, as the Minister for Justice and Equality has responsibility for An Garda Síochána, she or her Department has control over Garda records. I should explain at this point that section 11 of the FOI Act provides for a right of access to records "held" by public bodies that are subject to the Act. Section 2(5) provides that that this reference to "held" includes a reference to records "under the control" of public bodies. In other words, in the present case the Department is obliged to provide access under the Act to the records requested only if such records are under its control.

While the Minister for Justice and Equality has a role in relation to policy formulation and overall administration of An Garda Síochána, the Gardaí are operationally independent. The FOI Act itself recognises the separateness of Garda records, in that An Garda Síochána is listed as a partially included agency in its own right in Part 1(n) of Schedule 1 of the Act. In these circumstances, I do not accept that records relating to Garda investigations that may be held by An Garda Síochána are under the control of the Department.

The Department also drew the attention of this Office to the establishment of the independent Fennelly Commission of Investigation under the Commissions of Investigation Act 2004 to inquire into, amongst other things, the operation of telephone recording systems to record calls other than 999 calls to the Emergency Call Answering Service at a large number of Garda Stations over many years. The Department further stated that, shortly after the establishment of the Fennelly Commission, An Garda Síochána put in place a centralised procedure in respect of queries concerning the recording of non-emergency telephone calls at Garda Stations. The Department emphasised that enquiries are made with An Garda Síochána in respect of such queries and that the results are acknowledged to the requester, investigated and the outcome of the investigation advised to the Fennelly Commission.

In the circumstances outlined above, I am satisfied that the Department's decision to refuse the applicant's request was justified on the ground that no records exist or can 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