Case Number: 160132

Whether GNI was justified in its decision to refuse access to records relating to correspondence between GNI and the applicant during 2008 and 2009

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

Background

On 2 October 2015 the applicant made an FOI request to GNI, which included a request for access to

"Copy records held by Gas Networks Ireland detailing the alleged discharge of the invoice in question as well as records confirming this alleged discharge".

The invoice allegedly dated from October 2005 and covered a period in 2002-2004 involving the applicant and Bord Gáis Éireann, legal predecessor of GNI. In its decision of 11 December 2015, GNI granted access in part or in full to some records and refused access to other records on the basis of section 31(1)(a) and section 36 of the FOI Act. Following a request for an internal review, GNI varied the original decision and part granted access to additional records. In the internal review decision, GNI also refused access to certain records, in full or in part, on the basis of sections 15(1)(a), 31(1)(a) and 36 of the FOI Act. It also referred to section 17(4)(a), which concerns search for, and extraction of, records held electronically.

In the application for review to this Office, the applicant stated that "Our client requires the documents which relate to an outstanding invoice". In a submission to this Office, the applicant stated "that there was correspondence between itself [the applicant] and Gas Networks Ireland postdating the effective date [21 April 2008] and predating 13 October 2009". In a subsequent communication, the applicant confirmed that the application for review was made only in relation to that part of GNI's decision, which relied on section 15(1)(a).

In conducting this review, I have had regard to submissions from GNI and the applicant. I have also had regard to the communications between this Office and both the applicant and GNI on the matter. I consider that this review should now be brought to a close by issue of a formal, binding decision.

 

Scope of Review

In the course of the review, the Investigator clarified with the applicant that those parts of the decision covering sections 31(1)(a) and 36 were not part of the application.

This review is concerned solely with whether GNI was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act, for access to records, on the ground that no such records can be found.

In relation to the dates of records within the scope of the request, the right of access to records held by GNI applies to records created on or after 21 April 2008.

 

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the dispute between the applicant and GNI concerning an invoice is not a matter that can be taken into account in this review, except insofar as it might be relevant to the 'search' issue dealt with below.

 

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).

The applicant stated that correspondence was exchanged between the applicant and various representatives within Gas Networks Ireland (then Bord Gáis Éireann) between 2008 and 2009 and that such "essential information ... ought to be retained for the purpose of account regulation...". The internal review application contended that correspondence in the period 21 April 2008 to 13 October 2009 included exchanges with the Bord Gáis Éireann accounts payable department. The applicant also argued that an outstanding invoice comprised details of job completions, known as "track sheets", which had to be entered into the Bord Gáis Éireann computer system.

In its submission to this Office, GNI provided detailed accounts of the searches it says that it undertook in an effort to locate the records within its organisation in Cork and in Dublin. GNI stated that it "adheres to 'Data Retention Schedules', which have been documented for each individual department within the organisation, for guidelines, practices, procedures and arrangements in relation to the storage, archiving, retention and destruction of data records". It further stated that "These 'Data Retention Schedules'.... were in place at the time of receipt of the FOI request concerned." GNI also stated that, prior to 2013, formal retention schedules were not in place but that "records of a financial nature were retained for seven years, given best practice in light of the possibility of audits by the Revenue Commissioners". In response to queries from the Investigator, GNI said that all financial records were retained and that the back-up tapes referred to in its decision related to emails and correspondence stored.

GNI also stated that it had contacted its internal departments who may have had details stored off-site, and that all records identified by those departments were included in the FOI response. In particular, records 149 and 151 were identified in the schedule. It stated that "There are no other financial records ... for the 2008 and 2009 period".

The position of GNI is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct GNI to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken and the records identified in the schedule, I consider that GNI has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of GNI to refuse access to further records 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.

 

Elizabeth Dolan
Senior Investigator