Case Number: 160322

Whether the Department was justified in refusing to grant access to details of all Irish politicians and Irish companies named in the Panama Papers on the ground that it holds no relevant records

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

By letter dated 6 April 2016, the applicant submitted a request to the Department for information relating to the Panama Papers. Specifically, he sought the names of all Irish politicians and Irish companies named on the "Panama List". The Department issued its decision on 5 May 2016, refusing the request under section 15(1)(a) of the FOI act on the ground that it holds no relevant records. On 7 May 2016, the applicant sought an internal review of the Department's decision, confirming that his request was for a list of all Irish politicians and Irish companies named in the Panama Papers. The Department issued its internal review decision on 1 June 2016, in which it affirmed the original decision. The applicant sought a review by this Office of the Department's decision by way of letter dated 2 August 2016.

In conducting this review I have had regard to the Department's communications with the applicant as set out above and to the communications between this Office and the Department on the matter.

 

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse the applicant's request on the ground that no records containing the information sought 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 essence, the Department's position is that it has no role in considering or investigating issues arising from the Panama Papers and that such a role would fall within the remit of the Office of the Revenue Commissioners. In a submission to this Office, it stated that had the papers been received by the Department, they would have been forwarded to the Office of the Revenue Commissioners. It added that the papers in question were available only to particular journalists at the time of the applicant's request.

Notwithstanding this, the Department provided details of its record management procedures and of the searches undertaken on foot of the request. It stated that an email was circulated to all staff seeking records. The Minister's office and constituency office, the Secretary General's office, and the Department's press office were contacted directly. No records corresponding to the applicant's request were located.

No evidence has been presented to this Office to suggest that the Department ever held the information sought by the applicant. Having carefully considered the matter, I find that the Department was justified in deciding to refuse the applicant's request under section 15(1)(a) of the FOI Act on the ground that it holds no relevant records that contain the information sought.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to the record at issue.

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