Whether the IGB was justified in refusing access to additional records relating to the applicant under section 15(1)(a) of the FOI Act on the ground that the additional records sought do not exist or cannot be found

01/10/2018

Background

This review is connected to Case 170268, in which I issued a decision on 29 September 2017. In that case, I reviewed the IGB's decision on a request from the applicant for copies of:

• All correspondences generated from April 2013 to September 2016 in relation to his correspondences with the company solicitors, Minister(s) for Agriculture, the Department of Agriculture, Food and the Marine, and the Public Accounts Committee
• Minutes of any meeting that refer to him and any of his correspondences
• Briefing notes referring to him and any of his correspondences

The IGB had refused that request under sections 15(1)(d) and 15(1)(i) of the FOI Act on the ground that the information sought was either in the public domain or already in his possession. However, it failed to identify what records it deemed to come within the scope of the request and why it held the view that such records were in the public domain or had been previously made available to the applicant. As a consequence, I annulled the IGB's decision and directed it to conduct a fresh decision-making process on the request.
Having allowed the four week period for an appeal to the High Court to elapse and having taken the statutory period as having commenced at the end of that appeal period, the applicant sought an internal review of the deemed refusal of the request that this Office had instructed the IGB to consider afresh. On 13 December 2017 the IGB wrote to the applicant, indicating its intention to release additional records. The IGB issued its decision on 19 December 2017, releasing 35 records. On 5 February 2018 the applicant sought a review by this Office of the IGB's decision on the ground that the IGB had not released all relevant records.
I consider it appropriate at this point to bring this review to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the IGB as outlined above and to communications between this Office and both the applicant and the IGB on the matter. In referring to the records at issue, I have adopted the numbering system used by the IGB in the schedule of records it prepared when issuing its internal review decision on the request.

Scope of Review

During the course of the review Mr Flood of this Office sought further information from the applicant in respect of the records he believes should exist but that have not been released. The applicant identified the following:

• He noted that the version of record 23 he received from the IGB (a letter from the then IGB acting Chief Executive to the Department of Agriculture, Food and the Marine (the Department)) was different to the version released by the Department on foot of a separate FOI request.
• He further noted that record 23 issued by email only but that he did not receive the relevant chain of emails relating to that record. He referred specifically to emails dated 16 May 2014, 29 May 2014 (which contained record 23), and 3 June 2014.
• He did not receive copies of specific emails between the IGB and the Department of Agriculture, Food and the Marine on 5 September 2013, 3 October 2013, 3 February 2014, and 30 May 2016 that he believes to exist.

The applicant stated that he was willing to confine the scope of this review to those specific records. This review is therefore concerned solely with whether the IGB was justified in refusing access to the records described above on the ground the records do not exist or cannot be found (section 15(1)(a) refers). 

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 case involving section 15(1)(a) 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 such cases includes the steps actually taken to search for records. It also comprises 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.

In its submission to this Office, the IGB stated that it identified the revised version of record 23 that was not in the "sent" mailbox of electronic records from the originator of the letter but was found embedded in a thread of emails dated 3 June 2014. It stated that the email dated 16 May 2014 was previously released to the applicant (part of record 33). It stated that it identified further miscellaneous emails forming an email thread commencing on 28 May 2014. The email thread includes the email of 29 May 2014 from the IGB to the Department enclosing a copy of record 23. It also identified the email of 3 June 2014. The IGB further stated that it identified an email of 19 June 2014 from IGB's solicitors to its Chief Financial Officer with an attached draft letter from IGB to the Department but it could not state if the letter actually issued. It also identified an extract from the minutes of a board meeting of 5 June 2014 concerning the applicant's correspondence.

The IGB stated that it was unable to locate any emails dated 5 September 2013 or 3 October 2013. It identified an email of 3 February 2014 which included two attachments that were already released as records 18 and 32. It noted that the IGB response to that documentation was released as record 20. In relation to emails for 30 May 2016, the IGB stated that it identified an email thread for that date that, although it involves the applicant, concerns an entirely different matter.

On 26 April 2018, the IGB released all of the additional records located, numbered 36 to 42 in an accompanying schedule.
Having considered the additional records released, the applicant queried whether the letter attached to the email of 19 June 2014 is a copy of the actual letter that issued. He also queried the appropriateness of the board's decision to heavily redact the board minutes, and he queried the IGB's reference to the revised version of record 23 as the letter of 29 May 2014, as opposed to 26 May 2014 which is the date contained on the latter. Finally, he sought clarification as to whether the letter of 19 June 2014 was circulated to the board members.

The IGB provided further clarification of the issues raised by the applicant and Mr Flood of this Office provided the applicant with those details. In response, the applicant indicated that he was not satisfied with the clarifications provided. He raised further concerns, some of which extend beyond the scope of this review.
As I have outlined above, this review is confined to considering whether the IGB was justified in refusing access to records coming within the refined scope other than those subsequently released on 26 April 2018. This requires me to consider whether the IGB has taken all reasonable steps to locate the records sought.

I should say at this stage that the minutes of the board meeting of 5 June 2014 that were released in redacted form do not come within the scope of the review. As such, I have no further comment to make on those minutes. On the matter of the steps taken by the IGB to locate the records sought, I note that Mr Flood has already provided those details to the applicant. Therefore, I do not propose to repeat them in full here, although I can confirm that I have had regard to them for the purposes of this decision.
In summary, the IGB stated that it consulted all relevant employees in relation to obtaining any physical records, and searches were conducted in the locations where one would expect relevant records to exist. It submitted that the steps taken included visiting its solicitors' offices to examine their files for any relevant records. It stated that as the applicant engaged with it over a number of years regarding a range of areas, the level of records concerning him is voluminous. It stated that significant resources were required to identify all relevant documentation within the constraints of its systems. It stated, nevertheless, that its IT department also undertook a complete search of all electronic records to identify any references to the applicant, yielding 5,030 individual email items.

In relation to the emails sought dating from 2013, the IGB stated that its email systems were updated in November 2013, which involved "back-up" of its system, transferring from a tape based system to a "cloud" environment. It stated that, as a result, only the electronic records of staff working with the IGB at that time migrated to the new system and therefore its records prior to November 2013 are incomplete. It stated that back up tapes exist containing the records of former staff. However, it submitted that external assistance would be required to access material on the tapes. According to the IGB, the likely cost of doing so on a per tape basis would be prohibitive, notwithstanding subsequent issues surrounding identification of any relevant information held on the tapes. It seems to me that there is no way of knowing definitively whether relevant information would be identified if such measures were taken. In the circumstances of this case, it is not, in my view, reasonable to require the IGB to access information held on the tapes.

I understand that the applicant will be disappointed that no further records are available. However, it is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records an applicant knows to exist have not been located.

Having considered the matter carefully, I am satisfied that, at this juncture, the IGB has taken all reasonable steps to ascertain the whereabouts of the relevant records. I find that the IGB was justified in refusing to grant access to the outstanding records sought under section 15(1)(a) on the ground that the records in question do not exist or cannot be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IGB to refuse access to certain additional records under section 15(1)(a) of the FOI Act.

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