Case Number: 170216

Whether the Department was justified in deciding to refuse access to further records relating to a prosecution taken by South Dublin County Council under Waste Management laws under section 15(1)(a) of the FOI Act on the ground that no further records exist or could 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

The applicant submitted a request to the Department on 1 March 2017 for all records relating to visits and a subsequent prosecution undertaken by South Dublin County Council (the Council) under waste management laws on foot of information the Council received from the Department. On 3 March 2017, the Department decided to grant the request.

The applicant sought an internal review of that decision on the ground that he had not received all relevant records. Specifically, he argued that the Department had not provided any details of the complaint the Department had received. On 19 April 2017 the Department affirmed its original decision on the grounds that no further records exist or could be found. The applicant sought a review by this Office of the Department's decision on 8 May 2017.

During the course of this review, the Department provided this Office with information regarding the applicable records management policy and the searches conducted to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with those details on 15 June 2017. She informed the applicant of her view that the Department was justified in deciding that the records sought did not exist or could not be found. As the applicant has not indicated that he accepts Ms McCrory's views on the matter, I have decided to conclude this review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant's request for further records relating to the relevant actions taken by the Council under waste management laws on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to record may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their 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 decision maker concluded that the steps taken to search for records were reasonable.

As I have outlined above, Ms McCrory has already provided the applicant with details of the searches undertaken by the Department in an effort to locate relevant records and of its explanation as to why no further relevant records exist or could be found. In summary, the Department explained that where a phone call containing a complaint of the type at issue is received by the Department, it may email the relevant local authority for follow up action as the Department itself has no enforcement role. It stated that the officer who wrote the original email was consulted regarding the records sought and while some time has elapsed since the officer emailed the local authority, his recollection is that he wrote the email directly to the Council on foot of a phone call from a member of the public who did not identify him/herself. The Department further stated that no other records were required to be created as enforcement of plastic bag levy legislation is a matter for local authorities as opposed to the Department.

Nevertheless, the Department stated that it conducted a sweep of the entire electronic folder system using several relevant keywords and also conducted searches of staff email folders, including the relevant officer's email account. It explained that electronic records are saved in appropriately named shared folders on the network and as the records sought by the applicant dated from 2014 onwards, none had been routinely archived or destroyed and were held almost entirely in electronic format (e.g. email).

Having regard to the details of the searches conducted by the Department as outlined above and to its explanation of its role in such matters, I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that it was justified in its decision to refuse the applicant's request for access to further records on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

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