Case Number: 170373

Whether Caranua was justified in deciding to refuse access to additional records relating to the applicant's request for access to the guidelines used by Caranua when determining applications on the ground that no further relevant records 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

Caranua is a body that was established to provide support services to people who experienced abuse in residential institutions in Ireland. The applicant submitted a 14-part FOI request to the National Treasury Management Agency (the NTMA) on 30 March 2017, which included a request for access to the guidelines used by Caranua when determining applications. The NTMA subsequently transferred the request to Caranua, as the body that holds relevant records.

On 9 June 2017, Caranua issued a decision on the request in which it stated that the guidelines sought are available on its website. On 18 June 2017, the applicant sought an internal review of the decision on the ground that other guidelines exist that are not publicly available. On 17 July 2017, Caranua affirmed its original decision on the basis that the published guidelines are those used in determining applications.

On 24 July 2017, the applicant sought a review by this Office of Caranua's decision. In carrying out my review, I have had regard to the correspondence between Caranua and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and Caranua on the matter.

Scope of Review

This review is solely concerned with whether Caranua was justified in its decision to refuse access to additional records relating to the applicant's request for guidelines used when determining applications.

Analysis and Findings

In essence, Caranua's position is that the records it uses when determining applications are those already published and that no further relevant records exist. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In its internal review decision Caranua suggested that the applicant may have been referring to "internal guidance issued by the Chief Executive to all staff to assist them in applying the guidelines and criteria".

During the course of the review, Ms McCrory of this Office contacted Caranua and informed it of her view that the internal guidance in question was captured by the scope of the applicant's original request. Caranua stated that the internal guidance was contained in a staff handbook and that the record would be subject to considerable redaction if released. I agree with Ms McCrory's view that the internal guidance is captured by the scope of the applicant's request as it is clearly intended for use by Caranua staff when determining applications. I find, therefore, that Caranua has not justified its decision to refuse access to the record sought.

However, I consider that it is not appropriate to direct the release of records that have not first been considered by Caranua for release. Therefore, following careful consideration, it is my view that the decision of Caranua should be annulled in respect of the applicant's request for access to the guidelines used by Caranua when determining applications. The effect of my finding is that Caranua must consider this part of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with Caranua's decision.

I should point out, in any event, that the records sought by the applicant would appear to be of a type that Caranua should publish as a matter of course. Under section 8 of the FOI Act, all public bodies are required to prepare and publish a publication scheme and to publish information in accordance with that scheme. The Act provides that a publication scheme shall include, among other things, "the rules, procedures, practices, guidelines and interpretations used by the body ... for the purposes of decisions, determinations or recommendations, under or for the purposes of any enactment or scheme administered by the body". As such, Caranua should, in the first instance consider whether the records sought can be released immediately to the applicant without the need to process the request afresh.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of Caranua to refuse access to further relevant records relating to the applicant's request for access to the guidelines used by Caranua when determining applications. I direct Caranua to conduct a fresh decision-making process in respect of that part of the applicant's original request, unless the relevant records are otherwise published or released in the meantime in accordance with the requirements of section 8.

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