Whether the Department was justified in refusing access to records relating to the applicant’s late mother under section 15(1)(a) of the FOI Act

6 March 2020

Background

The applicant in this case was given Grant of Probate of her late mother’s estate on 28 April 2016. On 11 April 2018, the Department received a request from the applicant for all records relating to her mother from 1980 to 2015. In her request for records, she explained that her mother had acted as executor and trustee of her father’s estate following his death. She said both her mother and father farmed particular lands and had associated herd numbers. She requested that the Department also search for records under her father’s name and various land folio numbers. She provided details of how the lands were farmed.

The Department engaged in lengthy correspondence with the applicant in order to establish details that would assist in its search for records. In an email dated 22 May 2018, the applicant provided a herd number which she suggested might be relevant for the purpose of identifying records coming under the scope of her request.

It came to light during the course of this review that the Department determined that two decision makers would be required to process the request, one from the Green Low-Carbon Agri-Environment Scheme (GLAS) to cover the Rural Environment Protection Scheme (REPS), and one from the Basic Payments Scheme (BPS) to cover the Arable Aid elements of the request. The Department said the Arable Aid Scheme was replaced by the Single Farm Payment scheme in 2005 which in turn was replaced by the Basic Payment Scheme in 2015.

On 2 October 2018, the GLAS decision maker issued a decision in which he stated that he had decided to grant the request. A REPS file, comprising 51 records was released. The BPS decision maker issued a separate decision on 10 October 2018 refusing the request under section 15(1)(a) of the FOI Act on the ground that no records could be found for the herd number provided.

On 20 October 2018, the applicant sought an internal review of the Department’s decision. She also sought information relating to questions to which she sought answers regarding the herd number and its registration. On 13 November 2018, the Department issued two internal review decisions wherein it affirmed the original decisions.

The applicant sought a review by this Office of those decisions on 6 February 2019. I have now concluded my review in this case. I have decided to bring the 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 Department as outlined above and to communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to additional records coming within the scope of the applicant’s request for all records relating to her mother from 1980 to 2015 on the ground that no further records exist or can be found.

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 do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office 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 decision and I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In submissions to this Office, the applicant stated that the Department ought to hold further records falling within the scope of her request. She particularly highlighted the absence of records relating to grant payments and records of the change of ownership of the relevant herd number in circumstances where the Department could find no records of that herd number under her late mother’s name, but held records relating to that herd number and a third party. Ms Whelan of this Office sought answers to detailed queries about searches undertaken from the Department. The Department provided submissions of the searches it had undertaken to locate relevant records. The applicant has been provided with a summary of those submissions and I do not propose to repeat it here in full.

The applicant has submitted a substantial volume of correspondence to this Office in support of her argument that the Department holds other records relating to her mother. Having examined that correspondence, I am satisfied that the Department did, at some stage, hold relevant records that it did not locate when processing the request. I note, for example that the applicant is in possession of a letter her mother’s legal representatives received from the Department’s Forest Service dated 28 November 2011 which states that certain records containing her mother’s signature were being released and contains details of payments made on a particular plantation from 1994 to 2011.

It also appears to me that the Department holds certain records relating to the herd number provided by the applicant that it did not consider for release on the ground that the applicant’s mother is not registered as the herd owner. However, I note that the applicant’s mother is mentioned in at least some of the records. In my view, the records at issue should have been considered as coming within the scope of the applicant’s request. It would have been open to the Department to apply one or more of the exemptions provided in the FOI Act if it considered that the records were exempt from release.

I would add that it is not apparent to me that the Department searched for relevant records under the name of the applicant’s late father. Given the wording of her request, it seems to me that any such records, if held, should have been considered when processing the request.

In all of the circumstances, I am not in a position to find that the Department carried out all reasonable steps in an effort to ascertain the whereabouts of relevant records. I find, therefore, that the Department was not justified in refusing access to additional records under section 15(1)(a). It seems to me that the most appropriate course of action to take is to annul the entirety of the decision of the Department and to direct it to consider the applicant's request afresh. In doing so, however, I would like to make the following comments.

The applicant submitted an extremely broad request in my view, having regard to the period for which records were sought and to the apparent breadth and variety of engagements the applicant’s parents had with the Department. On this point, I note that section 12(1) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. While the parties exchanged a considerable amount of correspondence before the Department issued its decisions on the applicant’s request, it seems to me that those engagements might have proven to be more beneficial had the Department given the applicant more specific information on the types of records it might expect to hold and had the applicant been more specific in relation to the information she was hoping to access.

Accordingly, it seems to me that as a first step in processing the request afresh, it would be beneficial for both parties to agree, in the first instance, on the precise nature of the records sought apart from those already released. The Department should also bear in mind that it alone is responsible for ensuring that any subsequent searches for relevant records extend to all parts of the Department that might hold relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse access to further relevant records as I find that it has not conducted all reasonable searches in an effort to identify all records relevant to the applicant's request. I direct the Department to conduct a fresh decision-making process in respect of the request.

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