Case Number: 160051

Whether HSI was justified in refusing to release further records relating to the applicant's request for details of funding relating to the inspections of draught horses on the ground that all relevant records have already been released

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 5 November 2015, the applicant made a request to HSI for records and information relating to the expenditure and funding of inspections of Irish draught horses. Specifically, he sought the following:

A breakdown of payments made to each of the inspection venues, to the staff and to the inspectors,
Details of the fees paid by the applicants and horse owners for the inspections, and
Information on the sources of any funding, either internal or external

As HSI failed to issue a decision within the required time frame, the applicant sought an internal review of the deemed refusal of his request on 7 December 2015. On 10 December 2015, HSI provided the applicant with a number of records relating to his request but did not issue a formal decision in accordance with the provisions of the FOI Act.

On 7 January 2016, the applicant sought a review by this Office of HSI's failure to provide all information sought. Following discussions with this Office, HSI wrote to the applicant on 2 February 2016 wherein it stated that all the information sought had been provided to him. On 3 February 2016, the applicant informed this Office that he required a review of HSI's decision, insofar as it related to his request for information on the sources of any funding.

Following correspondence with Mr Christopher Flood of this Office, the applicant confirmed, in an email of 21 April 2016, that he continues to seek details of any sources of funding for the inspections, including the amounts of from each source and details of how the funding is spent or allocated on the inspections. He stated that he is not seeking the disclosure of personal information.

During the course of the review, HSI identified further records relating to the applicant's request. 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 HSI and the applicant, as set out above, to the records that HSI provided to the applicant, copies of which were sent to this Office for the purposes of the review, to details of various contacts between this Office and HSI, 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 HSI was justified in refusing access to any additional records relating to any sources of funding of the inspections in question on the ground that no further records relating to the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

It is important to note at the outset that the FOI Act does not confer a general right of access to information; rather it confers a right of access to records containing the information sought. Therefore, the applicant's request for information has been treated as a request for access to records containing the information he seeks. However, the Act does not prevent HSI from releasing information in a tabular form if it enables an efficient response which meets the scope of the request.

I would also like to comment briefly on HSI's handling of the applicant's request. While I fully appreciate that this was the first request HSI received under the FOI Act, its handling of the request was poor. The Central Policy Unit of the Department of Public Expenditure and Reform has made significant resources available on its website, www.foi.gov.ie, to facilitate the efficient processing of FOI requests, including a detailed Code of Practice for public bodies and sample letters for use when processing requests. I expect HSI to make use of the supports available to it and to ensure that it follows the statutory procedure as set out in the FOI Act for processing all future requests.

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. This Office's understanding of its role in such cases was approved by Quirke J. 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 submissions to this Office made on 6 April 2016, HSI indicated that it receives Equine Project Support Grant funding from the Department of Agriculture, Food and the Marine in respect of inspections, in addition to fees charged for inspections, details of which it has already provided. It stated that costs not covered by inspection income and Equine Project Support grant funding are allocated from general HSI resources. HSI further stated that sources of HSI funding are detailed in its Annual Report which is in the public domain and available on the HSI website.

However, HSI also informed this Office that it had identified multiple further records relating to Equine Project Support Grants that fall within the scope of the applicant's request but were not released to him. In the circumstances, I find that HSI was not justified in its decision to refuse access to further records on the ground that no further records exist or can be found. The effect of my finding is that HSI's decision must be annulled and it must make a fresh, first instance, decision in respect of the applicant's request, in accordance with the provisions of the FOI Act. In making that decision, HSI should have regard to the narrowed scope of the request, as set out above, to the records identified during the course of this review, and to any other records in existence relating to the applicant's request.

During the course of this review, HSI expressed a desire for guidance from this Office in relation to the question of the release of certain records that may include personal information or other information excluded from release under the FOI Act. As I have explained above, such assistance and guidance is available from the Central Policy Unit. I should add that I note HSI offered to meet with the applicant to discuss his request. While the applicant was fully entitled to refuse such an offer, it may have facilitated HSI's efforts to more readily identify the information sought or to provide further information to the applicant as to the nature of the records held by it. While FOI bodies are required to give reasonable assistance to persons seeking records under the Act, there is also a requirement on requesters to provide sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. Of course it was also open to HSI to seek to clarify matters through an exchange of emails if this was deemed necessary.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of HSI in this case. I direct that HSI undertake a fresh decision-making process in respect of the narrowed request, as set out above, and that it informs the applicant of the outcome of its decision, in accordance with section 13 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