Whether the Central Bank was justified in refusing access to records relating to legal proceedings between a named company v National Asset Management Agency and National Asset Loan Management DAC under section 15(1)(a) of the FOI Act on the ground that no records exist or can be found

14 November 2019

Background

In a request dated 3 July 2019, the applicant sought access to records relating to legal proceedings issued in the U.S. between a named company v National Asset Management Agency and National Asset Loan Management DAC. In a decision dated 16 July 2019 the Central Bank refused access to the records sought under section 15(1)(a) on the ground that they cannot be found or do not exist. On 19 July 2019 the applicant sought an internal review, following which the Central Bank affirmed its original decision. On 27 August 2019 the applicant applied to this Office for a review of the Central Bank’s decision.

On 14 October 2019, this Office provided the applicant with details of the searches undertaken by the Central Bank and of its reasons for deciding that it would not hold the records sought. In her reply the applicant indicated she wished to continue to a decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant, the Central Bank and to the correspondence between this Office and both the applicant and the Central Bank on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The scope of this review is concerned solely with whether the Central Bank was justified in refusing the applicant’s request for access to records relating to the above entitled legal proceedings under section 15(1)(a) of the FOI Act on the ground that the records sought cannot be found or do not exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In submissions to this Office, the Central Bank provided details of the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, senior staff were consulted to identify the Divisions in the Central Bank where records might be held. The Central Bank also consulted the applicant to ascertain where she thought the records sought might be held.  The Central Bank stated that it initially confined its search to the legal unit due to the nature of the records sought. The Central Bank outlined the consultations held within the legal division as well as electronic searches carried out on shared mailboxes and document management systems. The Central Bank stated that the legal division does not normally hold records regarding unrelated proceedings involving other State bodies and/or commercial entities.

In the course of the Internal Review, the Central Bank expanded its search to a further three divisions as they were identified as the most likely to have engagement with NAMA/NALM. The Central Bank outlined that senior management within the units were consulted and electronic searches were carried out using a combination of the names of the parties to the legal proceedings. The Central Bank explained that the Governor’s Office also conducted searches of its records. The Central Bank stated that the type of records requested by the applicant do not fall within its statutory functions.  The Central Bank outlined that it does not have any role in the oversight or management functions of NAMA or NALM and would not, in the ordinary course of business, hold the type of records requested. The Central Bank also stated that the named company is a commercial undertaking and not a financial service provider regulated by the Central Bank therefore it does not hold the records sought.

I am unable to identify further specific searches that the Central Bank should carry out. I do not believe that the FOI Act requires me to direct the Central Bank to indefinitely carry out general searches for the records sought. Having considered the details of the searches undertaken and explanations regarding the consultation process to identify areas where such records might be held, I am satisfied that the Central Bank has carried out all reasonable steps in an effort to ascertain the whereabouts of any relevant records coming within the scope of the applicant’s request. I find, therefore, that the Central Bank was justified in refusing access to records on the ground that no relevant records 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 Central Bank to refuse access to the applicant’s request for access to records relating to legal proceedings between the above named parties on the ground that the records sought do not exist or cannot 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.

Senior Investigator

Stephen Rafferty