Whether the Department was justified in deciding to refuse access to records relating to the site of the former Mother and Baby Home in Tuam on the ground that no relevant records exist

14 May 2018

Background

The applicant submitted two separate requests to the Department for records relating to the former Mother and Baby Home in Tuam (the Home). On 21 September 2017, she submitted a detailed request for a broad range of documentation held by the Department relating to the Home for the period 25 May 2014 to 26 February 2017 including communications between the Department and the Office of the State Pathologist, the Coroner's Service, the Coroner for the area, the Department of An Taoiseach and the Department of Children and Youth Affairs. Subsequently, on 6 October 2017, she submitted a separate request for all documentation relating to the Home between the Department and Forensic Science Ireland for the same period.

The Department issued decisions on both requests, in which it refused the requests under section 15(1)(a) of the FOI Act on the ground that no relevant records existed or could be found. In both decisions, it provided very basic details of the electronic search undertaken for records. The applicant sought a review of the Department's decision in both cases, following which the Department issued internal review decisions affirming the refusals under section 15(1)(a). In both decisions, however, it also stated that it had identified some records that were forwarded to Forensic Science Ireland relating to an ongoing deliberative process of the Expert Technical Group and the Department of Children and Youth Affairs and it stated that it was refusing access to those records under section 29(1), which is concerned with protecting the deliberative processes of public bodies. The Department's decisions did not indicate if it continued to hold copies of the records in question.

The applicant sought a review by this Office of both decisions of the Department. Given that the parties are the same in both reviews and given the overlapping nature of the requests, I have decided to conclude both reviews by issuing a single composite decision. In conducting the reviews, I have had regard to the correspondence between the Department and the applicant, and to the correspondence 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 requests for records relating to the Home under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found. 

Analysis and Findings

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. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. 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. This Office does not normally search for records.

Shortly after she submitted her applications for review and during a telephone conversation with this Office, the applicant queried how the Department could refuse a request under section 15(1)(a) while simultaneously refusing access to certain records under section 29(1). She also made the point that the Minister for Children and Youth Affairs had since published the relevant Report of the Expert Technical Group concerning the Home.

Following a request by this Office for clarification of the matter, the Department stated that at internal review stage, one email was uncovered that had not been located at the time of the original decision. It stated that it wished to continue to rely on section 29(1) to refuse access to the record notwithstanding the publication of the Report on the ground that the record relates to a sensitive issue which will very likely be the subject of continuing Government consideration. In a subsequent submission, the Department argued that the record in question fell outside the scope of the applicant's requests as it was created outside of the time period for which records were sought. Having examined the record, I am satisfied that it is not captured by the applicant's requests for the reason stated, although I note the Department's statement that the record was subsequently released to the applicant on foot of a request made to Forensic Science Ireland.

This leaves to me to consider whether the Department was justified in refusing the requests under section 15(1)(a). On the matter of the steps undertaken in an effort to locate relevant records, the Department stated that as the Coroner and Gambling Policy Division of the Department was only established on 1 January 2017, consultations were held with staff in the Prisons and Probation Policy Division, which had responsibility for the work area during the period in question, and with the Coroner Service Implementation Team based in Navan with a view to paper files and individual email accounts being examined. It stated that both areas responded to the effect that no relevant records exist, apart from the record mentioned above that was uncovered at internal review stage.

The Department further stated that an examination of all relevant databases (two Document Libraries - one old - and the Mail-In database) was undertaken to ascertain whether any records existed using the search term "Tuam". It stated that it found no record of interaction with the Coroner for the area but that it did not consult directly with the Coroner given his independence in the performance of his functions and given that the Coroner is not considered to be a public body for the purposes of the FOI Act. 

Having considered the Department's submission, Ms McCrory of this Office sought further details of the searches undertaken. For example, Ms McCrory noted that certain parliamentary questions (PQs) suggested that the Department might hold relevant records. She also sought further information concerning the search criteria used when interrogating the relevant databases. In response, the Department stated that the PQs all concern whether An Garda Síochána were carrying out enquiries into the Home and that the Division that dealt with the original FOI request would not have been involved in responding to them. It stated that a further search was subsequently carried out in its Crime Division and that it has located a number of records specifically relating to the Home but that they do not come within the scope of the original FOI request as they are not between the Department and Forensic Science Ireland.

On the matter of the search terms used, the Department stated that the term "Tuam" was a suitable term to use as Coroner and Gambling Policy Division is a new Division and that term would have identified all relevant records. It added that for the sake of completeness, an electronic search was conducted of the Minister and Secretary General's correspondence tracking using the terms "Mother and Baby Home Tuam" and "Tuam" and the only records that were identified were tracked to Prisons and Probations Policy Division which had already stated that it has no relevant records.

Ms McCrory wrote to the Department again on 27 April 2018 and expressed her view that the records were within scope as the requests were not limited to correspondence with Forensic Science Ireland and she requested further information about the records. A schedule of records was provided to this Office on 9 May 2018, which detailed 8 records totalling over 40 pages. No claims were made for exemption and the schedule appeared to indicate that this Office was to undertake consultations with An Garda Síochána and the Department of Children and Youth Affairs in respect of the records located.

In my view, the searches undertaken by the Department in this case fell short of the requirements of section 15(1)(a), namely that all reasonable steps be taken to ascertain the whereabouts of the records sought. Indeed, the fact that the Crime Division was not requested to conduct a search but has been found to hold relevant records supports my view on the matter. The Department has not adequately explained the basis on which it limited its searches when processing the requests. While I accept that the Department is best placed to determine which of its various Divisions might hold records, I expect it to be in a position to justify any decision to limit searches to particular areas.

Neither has the Department explained how a record was subsequently located within Prisons and Probation Policy Division in circumstances where the Division had previously stated that no relevant records exist. Indeed, I note that the searches conducted of the Minister & Secretary General's correspondence tracking tracked records to that Division which would appear to suggest that relevant records might exist. 

In all of the circumstances, I am not satisfied that the Department has carried out all reasonable steps to locate relevant records in this case to allow me to affirm its decisions to refuse the requests under section 15(1)(a). I find, therefore, that the Department has not justified its refusal under section 15(1)(a).

On the matter of the additional records located within the Department's Crime Division, I do not consider it appropriate to direct the release of records that have not first been considered by the Department for release. I consider that the appropriate course of action is to annul the decisions of the Department in their entirety, the effect of which is that the Department must consider the applicant's requests afresh and make new, first instance, decisions 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 the Department's decisions. I would also draw the Department's attention to sections 13(2)(d) and 21(5)(c) which require public bodies to provide reasons for refusing requests, details of the provisions on which the refusals are based, and findings on any material issues relevant to those decisions.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decisions of the Department to refuse access to the records sought by the applicant under section 15(1)(a). I direct the Department to conduct a fresh decision-making process in respect of each of the applicant's original requests. 

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