Whether the Department was justified in refusing to release records referring to the applicant passed between the Department of the Taoiseach and the Department of Justice and Equality after August 2014 on the ground that the records sought do not exist or cannot be found

14/09/2018

Background

On 5 February 2018 the applicant made a request to the Department for all communications concerning him that took place between the Department and the Department of the Taoiseach after August 2014. On 13 February 2018 the Department refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. On 19 February 2018 the applicant sought an internal review of that decision. The Department issued two separate decisions as the request spanned two Divisions, one on 28 February 2018 and a second on 27 March 2018. The Department affirmed the original decision to refuse the request under section 15(1)(a). On 3 April 2018 the applicant sought a review by this Office of the Department's decision.

During the course of the review, Ms Whelan of this Office provided the applicant with details of the Department's submissions regarding its records management practices and of the searches it undertook in an effort to locate relevant records. She informed the applicant of her view that the Department had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records and that it was justified in refusing the request on the ground that the records sought do not exist or cannot be found. She invited the applicant to make a further submission on the matter and he did so. I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Department as set out above and to the communications between this Office and both the Department and the applicant on the matter. 

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing access, under section 15(1)(a), to communications concerning the applicant between the Department and the Department of the Taoiseach after August 2014 on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 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. 

At this stage, it is worth noting the nature of the communications the applicant expects the Department to hold. In May 2014, the Government decided that the Minister for Justice and Equality should establish an Independent Review Mechanism (IRM) to consider allegations of Garda misconduct or inadequacies in the investigation of such allegations, with a view to determining to what extent and in what manner further action may be required in each case. The applicant had made complaints against An Garda Síochána, details of which were forwarded to the IRM. However, he stated that he had also made a complaint to the Taoiseach about the Department of the Taoiseach and he alleged that the Department of the Taoiseach erroneously passed that file to the Department for consideration by the IRM.

The Department has confirmed that it did, indeed, receive correspondence from the Department of the Taoiseach concerning the applicant in the past but that this exchange took place before August 2014 and the correspondence in question related to the applicant's complaints against An Garda Síochána (AGS). It stated that correspondence it received earlier that year from the applicant and from two named individuals on his behalf was referred to the IRM by its Crime Division. It further stated that the correspondence that the Department of the Taoiseach forwarded to it in May 2014, from a TD and one of the named individuals, related to the applicant's complaints against AGS and made no mention of a complaint he had against the Department of the Taoiseach.

The Department's position is that the communications in question are not captured by the scope of the applicant's request as they took place prior to August 2014. It stated that it holds no records coming within the scope of the request as nothing further had been received from the Department of the Taoiseach during the period relevant to the request. It stated that there is no evidence to suggest that it ever received material from the Department of the Taoiseach concerning complaints the applicant made against that Department. 

The Department provided details of the searches conducted in an attempt to locate relevant records. In short, the relevant divisions of the Department were engaged and electronic and hard-copy searches were conducted using the applicant-™s name and email addresses. These searches did not uncover any relevant records. The applicant queried why divisions of the Department were searched as opposed to the offices of the Secretary General and Minister. In its submission, the Department clarified that all correspondence is routinely routed through different divisions and that no correspondence was held in the aforementioned offices. The Department further stated that practice in the Department is to record any correspondence to the Secretary General or the Minister on an electronic correspondence tracking system and then refer it to the relevant division. 

In his submissions to this Office, the applicant stated that he had been informed by the Department of the Taoiseach that his complaint concerning that Department had been passed to the Department of Justice and Equality. Ms Whelan of this Office subsequently requested the applicant to submit evidence of the assurances given by the Department of the Taoiseach that a file concerning his complaint against that Department had been forwarded to the Department of Justice and Equality, apart from his own emails indicating that he had been given such assurance. In response, he forwarded an email he had received from the private secretary to the then Secretary General of the Department of Justice and Equality dated 23 July 2015. In that email, the author referred to the fact that "the Department of the Taoiseach have been forwarding material that [the applicant submitted] to them to be associated with [his] review mechanism file". This email does not confirm either that the applicant's complaint against the Department of the Taoiseach was forwarded to the Department of Justice and Equality or that such communication was made after August 2014. Indeed, I note the Department's contention that the email in question contains information relating to the complaints the applicant had made in early 2014. 

I also note that the Department informed the applicant, in response to a separate FOI request, that it had received the file back from the IRM and that a thorough review of the documents on the file revealed that the only material referred by the Department of the Taoiseach was that mentioned above and that it did not contain any reference to his complaint against the Department of the Taoiseach.

While it is not in doubt that the Department of the Taoiseach forwarded correspondence relating to the applicant to the Department, no evidence has been presented to me to suggest that such an exchange took place after August 2014. Indeed, Ms Whelan of this Office contacted the Department of the Taoiseach to enquire as to whether it had sent correspondence concerning the applicant to the Department during the relevant period. The Department of the Taoiseach confirmed that it had sent all correspondence in May 2014 and that it had not sent any further records after August 2014. It is the position of the Department of Justice and Equality that it has carried out all reasonable steps to ascertain the whereabouts of such records and that no relevant records exist or can be found. Having regard to the search details and records management practices of the Department, I am satisfied that it has taken all reasonable steps in an attempt to locate records falling within the scope of the applicant-™s request. I find, therefore, that the Department was justified in refusing the request on the ground that no relevant records exist or they cannot be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to records of communications concerning the applicant between the Department and the Department of the Taoiseach after August 2014 under section 15(1)(a) of the FOI Act, o the ground that no such records exist or can be found.

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