Whether the Department was justified in its decision to refuse access to a record relating to the applicants that it located in the course of the review and to refuse access to any further records under section 15(1)(a) on the grounds that no further relevant records exist or can be found.

17 April 2018　

Background

In the circumstances of this case, I must explain at the outset that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the Department's arguments and of the reasons for my decision are extremely limited in this case.

The applicants submitted a request to the Department on 19 April 2017 for their personal files held by a specific Office of the Department. On 19 May 2017 the Department decided to part grant the request with the redaction of certain third party information. The applicants sought an internal review of that decision on 13 June 2017, through their solicitors. They stated that they had expected to receive records concerning the circumstances which led to an investigation that was carried out by the Department's Special Investigations Unit. In its internal review decision, the Department affirmed its original decision on the ground that all relevant records were released. On 6 September 2017, the applicants sought a review by this Office of the Department's decision.

During the course of the review, the Department identified a further record relevant to the request. However, it argued that the record was exempt from release. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records identified by the Department as coming within the scope of the FOI request.

Scope of Review

This review is concerned with whether the Department was justified in its decision to refuse access to the additional record it located in the course of the review and in its decision to refuse access to any further records under section 15(1)(a) on the grounds that no further relevant records exist or can be found.

Analysis and Findings

Having regard to the constraints imposed by section 25(3) as outlined above, I am not in a position to set out the Department's arguments for refusing access to the additional record located. However, I can confirm that I have fully considered those arguments. Having regard to the provisions of section 22(12)(b) which places the onus on the Department of satisfying me that its decision to refuse access to the record was justified, I find that the Department was not justified in refusing access to the record and I direct its release.

On the matter of whether other relevant records exist, section 15(1)(a) of the FOI Act provides that a request for access to records 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.

The Department stated that searches were carried out manually in the specific Office mentioned by the applicants in their request. It stated that it also conducted electronic searches of its recording and payments systems using names and PPS numbers and that all relevant staff members were consulted. It stated that all records were released apart from the additional record that was discovered during the review. While I am again constrained from providing detailed reasons for my findings, I am satisfied, having regard to the explanation provided by the Department and having examined the relevant records, that the Department carried out all reasonable searches and that it was justified in refusing access to any other records on the ground that no additional relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of Department in this case and direct it to release the record located during the course of this review.

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