Whether the Department was justified in refusing access to an archive of records that were deposited with the Department by the Inter-departmental Committee that was charged with establishing the facts of State involvement with the Magdalen Laundries following the completion of its work, on the ground that the records are not held by the Department for the purposes of the FOI Act

24 January 2020

Background

The applicant in this case is a survivor of a Mother and Baby Home, an Industrial School and a Magdalen Laundry. She has been represented by her solicitors from the time she first submitted the FOI request that is the subject of this review. Accordingly, all references to engagements and exchanges of correspondence with the applicant should be taken to include engagements and correspondence with her solicitors.

On 11 September 2018, the applicant submitted a request to the Department for certain records that she understood the Department to hold as part of the State papers produced by the Inter-departmental Committee that was charged with establishing the facts of State involvement with the Magdalen Laundries (the IDC). She sought all records and correspondence relating to the High Park Magdalene Laundry, and all personal records relating to her.

In its decision of 10 October 2018, the Department refused the request. It said that while the records of the archive of the IDC (the archive) are stored in the Department for the purpose of safekeeping in a central location, they are not held by, or within the control of, the Department for the purposes of the FOI Act. It said that other FOI bodies may hold the records sought and that in the case of departmental, state agency, and state body records, the IDC decided that its archive would consist only of copies of relevant official records and that the original records would remain in their original files and locations.

The applicant sought an internal review of that decision on 6 November 2018. She noted that the IDC report recorded that the archive would be deposited with the Department in order for it to be stored centrally and made available to researchers. She argued that the records in question are lawfully in the possession of the Department.

On 27 November 2018, the Department affirmed its original decision to refuse the request. On 8 May 2019, the applicant sought a review by my Office of the Department-�s decision.

During the course of the review, both parties made submissions to my Office in support of their respective positions. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the communications between the parties as outlined above, to the final Report of the IDC, and to the communications between my Office and both parties on the matter. I have decided to conclude the review by way of a formal, binding decision.

Scope of the Review

My review is concerned solely with the question of whether the Department was justified in refusing the applicant-�s request on the ground that the records of the archive are not held by the Department for the purposes of the FOI Act.

Preliminary Matters

During the course of the review, the applicant suggested that I should use my powers under section 45(1) of the Act to require the Department to furnish an index of the contents of the archive. She also suggested that I should attempt to effect a settlement between the parties. I note that my Office, with the agreement of the Department, furnished the applicant with the index to the archive that, according to the Department, had accompanied the archive. The applicant suggested that I should require the Department to furnish a more detailed index.

Given the Department-�s position in respect of the archive, i.e. that it does not hold the relevant records for the purposes of the Act, I am satisfied that it would not have been appropriate for my Office to seek to obtain a more detailed index during the course of the review or to attempt to effect a settlement between the parties.

It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this review).

The Archive

The IDC was established pursuant to a Government decision in June 2011. Its membership consisted of senior representatives from six Government departments (not including the Department) and an independent Chair, the then Senator Dr. Martin McAleese, who was formally appointed to the role by the Minister for Justice and Equality.

The Committee was given a broad mandate by Government -�to establish the facts of State involvement with the Magdalen Laundries-� and to produce a narrative report thereon.

Chapter 6 of the final Report of the IDC sets out the arrangements for the maintenance of an archive of the Committee-�s work. The following extracts from the final Report are, in my view, of relevance:

-�Conscious of the scattered nature of the records concerned, the Committee undertook in its Interim Report that, upon conclusion of its work and publication of this report, an archive of its work would be created and stored centrally-�

-�The originals of all such records identified -� many of which were already archived, and some of which are covered by the National Archives Act 1986 -� will remain in their original files and locations. Nonetheless, maintenance of these copies together in a single location will be a concrete outcome to the Committee-�s work and may be a resource for future research-�

-�Although the Minister for Justice and Equality was lead Minister in relation to the Departments represented on the Committee, many cross cutting issues were raised by the Committee-�s work. Further, the findings contained in this report are based on the input of all relevant Government Departments, not alone those represented on the Committee. Accordingly, it was agreed that the most appropriate course of action would be that the archive of the Committee-�s work would be deposited with An Taoiseach-�.

The Applicant's Arguments

In her application for an internal review of the Department-�s original decision, the applicant argued that unlike the situation arising in the case of Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case), the IDC was not an independent entity. In her application to my Office, she argued, among other things, that the archive is lawfully in the possession of the Department and that the intention of depositing it with the Department was to make it accessible for research purposes. She argued that the statutory functions of the Department include the administrative control of, and responsibility for, public services not already comprised in any department of State, pursuant to section 1(i) of the Ministers and Secretaries Act, 1924.

The applicant further argued that the IDC was established by Government and its records are records of the Government. She argued that the work of the IDC was the work of six departments of State but that its mandate crossed departmental boundaries and that it provided a service that could not have been performed by any department of State acting alone.

The applicant also argued that the Department-�s functions include the custody of, and responsibility for, all public archives and records of the Government and of the State. She also argued that the Department cannot reasonably argue that it is holding records for safekeeping on behalf of a committee that has been dissolved and will not return to collect them.

The Department-�s Arguments

The Department-�s primary argument, as set out in its original decision on the FOI request, is that while the records of the archive are stored within the Department for safekeeping, they are not held by it for the purposes of the FOI Act. In submissions to my Office, it expanded on that argument and made a number of related arguments in support of its refusal of the request.

In its submission of 2 July 2019, the Department argued that while it is in physical possession of the archive, it does not hold the records in connection with, or for the purpose of, its business or functions. It stated that it agreed to abide by the wishes of the IDC in order to assist the Chair of the IDC in concluding his work and that it accepted the archive on the clear understanding that it would be for safekeeping purposes only and that it would not have agreed to the IDC-�s request on any other basis. It stated that the boxes containing the archive are in secure storage within the Department but are not considered Department files and are not included in its Registry Database. It added that more generally, responsibility for the records of State departments rests with each individual department, pursuant to section 7(1) of the National Archives Act 1986, and that responsibility over the national archives is a matter for the Minister for Culture, Heritage, and the Gaeltacht.

The Department also argued that certain restrictions in relation to access to the archive apply and that it does not possess any scope or discretion to waive application of the restrictions.

Following receipt of those submissions, my Office sought the Department-�s views as to which body or bodies it considers to hold the records in its possession. In response, the Department said that per the final Report of the IDC, the archive consists only of copies of relevant State records and all such records identified remain in their original files and locations and it considers that they are held by the relevant department/body from which they originated.

In relation to records of the religious congregations that relate to the High Park Magdalene Laundry and its residents, the Department noted that according to the final Report, all identifying information was removed from the working database resulting in a master-list detailing known entries under specific headings, namely year of entry, country of origin, route of entry, duration of stay, and route of exit. It argued, therefore, that information on the High Park Magdalen Laundry, as an identifiable institution, and any individual resident, as an identifiable individual, was not retained and that no such records would be in the archive.

In relation to other committee records, the Department said that on receiving the archive, it was also provided with an index of the archive which states that;

-�it is not a record of the day-to-day work of the Committee or an exhaustive catalogue of its work and it does not replace or otherwise substitute for the day-to-day files of the departments that participated in the work of the Committee. Rather, it is a collection of copies of State records relating to the Magdalen Laundries as identified by the Committee-�.

The Department added that my Office had previously found, in Case No. 140228, that copies of papers unrelated to the role and function of the Department are not held by the Department for FOI purposes.

The Department subsequently confirmed its position that the records at issue, being copies of original records, are held for the purposes of the Act by the relevant department/body from which they originated along with those original records.

Analysis and Findings

It seems to me that before I consider the substantive issue of whether the records contained within the archive are held by the Department for the purposes of the FOI Act, there are a number of subsidiary issues I must address, namely;

• whether the records sought form part of the archive, and
• whether the records of the archive can reasonably be said to be held by the departments/bodies from which the original records originated.

Do the records sought form part of the archive?

As I have outlined above, the applicant-�s request was for all records and correspondence relating to the High Park Magdalene Laundry, and all personal records relating to her. The Department argued that information on the High Park Magdalen Laundry, as an identifiable institution, and any individual resident, as an identifiable individual, was not retained and that no such records would be in the archive.

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the FOI body considers that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Department itself identified the records of the archive as relevant to the request. However, it did not choose to refuse the request under section 15(1)(a) and instead refused the request on the ground that it does not hold those records.

In any event, even if the Department had accepted that it holds the records of the archive for the purposes of the Act, it seems to me that in light of the requirement that it must take reasonable steps to ascertain the whereabouts of relevant records, the Department would not have been in a position to refuse the request under section 15(1)(a) without first having examined the records of the archive. It seems to me that a determination that the relevant Laundry is not identifiable in any of the records would require, at a minimum, an examination of the contents of the various records. For that reason alone, I find that the Department-�s argument, that records of the type sought by the applicant would not be in the archive, would not provide a sufficient ground for refusing the request.

The fact remains that the Department deemed the records of the archive to be relevant to the request. As such, I am satisfied that it is appropriate to proceed to consider whether the Department was justified in refusing the request on the ground that the relevant records, being the records of the archive, are not held by it for the purposes of the Act.

Are the records of the archive held by other bodies?

Following a request for clarification by my Office, the Department confirmed that it considered the records of the archive, as copies of originals held by other departments/bodies, to be held by those other departments/bodies for the purpose of the FOI Act. I do not accept this argument for a number of reasons.

Firstly, apart from anything else, not all of the records of the archive are copies of original records held by other public bodies. The index to the archive that accompanied the archive states that certain materials generated by or for the Committee are also included, including records such as minutes of Committee meetings, submissions made to the Committee, etc. For this reason alone, the entire archive of records cannot be deemed to be held by other public bodies.

Secondly, under section 2 of the Act, a record is defined as including a copy of a record. In other words, a copy of a record is, of itself, a record for the purposes of the Act. The definition ensures that a copy of a record held by an FOI body is, of itself, subject to the provisions of the Act and must be released unless it is found to be exempt under Part 4 or Part 5.

Let me provide an example by way of further explanation. Under section 46(1)(c) of the Freedom of Information Acts 1997 and 2003 (the Act of 1997 - the predecessor to the Act of 2014) the Act of 1997 did not apply to a record relating to a review carried out by my Office. The question of what body held the record or copies of the record was irrelevant. If the record, or a copy of the record, related to a review, the Act did not apply to it.

However, no such similar provision was included in the Act of 2014. Instead, my Office is now listed in Schedule 1 as a partially included agency. Under Schedule 1, my Office is not a public body in the performance of its functions under the Act. This means that the Act does not apply to records my Office holds that relate to reviews carried out by my Office. However, that protection does not extend to copies of those records that are held by other FOI bodies or, indeed, to originals of copies of records held by my Office that are held by other FOI bodies. The versions of the records held by other FOI bodies are, of themselves, records that are subject to the provisions of the FOI Act. I understand from my Office-�s previous discussions with the Central Policy Unit of the Department of Public Expenditure and Reform that this point of principle has been accepted by the Office of the Attorney General.

The definition of a record in section 2 of the Act also provides that a copy of a record shall be deemed, for the purposes of the Act, to have been created at the same time as the original record. This does not, in my view, mean that a copy of a record should not be considered as a document in its own right to which the provisions of the Act apply, nor does it mean that the holder of the original record is also deemed to hold any copies of that same record regardless of what body holds them. As Maeve McDonagh noted in her book Freedom of Information Law, 3rd ed., 2015, at 141-142:

-�The final part of the definition of record -� reproduces the phrase added to the definition of record in the FOI Act 1997 by the FOI Amendment Act 2003 as a result of the decision of the High Court in Minister for Justice, Equality and Law Reform v Information Commissioner [2001] IEHC 35 in which Finnegan J. held that the creation of copies of records by the DPP for inclusion in a book of evidence amounted to the creation of a record by the DPP. The Information Commissioner had highlighted the difficulties that could arise from the decision of Finnegan J. in Minister for Justice, Equality and Law Reform v Information Commissioner: for example, that the making of a copy of a pre-commencement record after the commencement date could be regarded as amounting to the creation of a post-commencement record to which the Act would therefore be applicable. The 2003 amendment established that a photocopy or other reproduction of a record is deemed to have been created on the same date as the original record.-�

In conclusion, therefore, having regard to the definition of a record in the FOI Act, I find that the records of the archive held by the Department are records in their own right for the purposes of the Act and that they cannot be said to be held by the bodies that hold the originals of those records. As such, the records of the archive fall to be considered for release on their own merits by whatever body holds them for the purposes of the Act.  

The meaning of -�held-�

Section 11(1) of the Act provides for a right of access to any record held by an FOI body. While the Act does not define -�held-�, I fully accept that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. Indeed, as the Department noted in its submissions, my Office previously found, in Case No. 140228, that records held by the Department-�s Secretary General in his capacity as a member of the Commission for Public Service Appointments were not held by the Department for the purposes of the Act.

The Supreme Court has recently considered the meaning of -�held-� for the purposes of the Act in the Drogheda Review case I referenced earlier. In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, a former High Court judge, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. The review was not established on a statutory basis.

Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer had stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Act of 1997 (section 6(1)) which provides for the right of access to records held by public bodies) gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record -�held-� by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

As I have explained above, section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records of the archive to be deemed to be held by the Department,the Department must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.

Analysis of the arguments presented

The Department-�s position is that it does not hold the records at issue for the purposes of the Act as it does not hold them in connection with, or for the purpose of, its business or functions. In considering that argument, it is necessary to examine the conditions under which the Department came to be in possession of the records.

It is worth repeating at this stage that the records held are, for the purposes of the Act, distinct and separate from the original records held by the various other relevant bodies. The IDC clearly considered that the archive should be held as a separate and discrete set of records, regardless of the fact that the originals of many of the records contained within the archive would be held by the various relevant bodies. This was an entirely appropriate decision to take, in my view, given the significant difficulties the IDC encountered in collating all of the relevant records in the first instance and given the IDC-�s view that the holding of the archive of records in a single location would be a concrete outcome to the Committee-�s work and may be a resource for future research.

The question that arose for the IDC, therefore, was where the archive should properly be held. When considering that question, it noted the approach to archiving adopted by the Commissions of Investigation Act 2004 whereby, upon dissolution of a Commission, the Chair (or sole member, where applicable), is required to deposit with the responsible Minister all evidence received by, and all documents created by or for, the Commission. It decided to adopt a similar approach, notwithstanding that the Act of 2004 did not apply to its work.

The IDC agreed that as many cross-cutting issues were raised by its work and as the findings of its Report were based on the input of all relevant Government departments and not just those represented on the Committee, the archive would be deposited with An Taoiseach. Such a decision was not unreasonable, in my view, given the broad, cross-cutting nature of the work undertaken.

The Department-�s argument appears to be that it does not hold the records at issue in connection with, or for the purpose of, its business or functions on the grounds that it had no role or function at any point in relation to the Magdalen Laundries or in relation to the work of the IDC.

The archive of records comprises, without question, State records. As such, ownership of the archive must necessarily rest with an arm of the State. I do not accept that the FOI Act cannot apply to those records simply because no public body has expressly accepted that it holds the records. If this was the case, it would be a simple matter for records that the Oireachtas intended would be subject to FOI to be placed beyond the scope of the Act.

It is the function of the Department to support the role of the Taoiseach and government and to coordinate the work of all government departments. It has, in essence, a cross-cutting function. It seems to me that by taking possession of the archive, as a discrete set of records concerning a specific body of work undertaken in respect of the functions of a number of departments, the Department has essentially, and properly in my view, accepted ownership of the archive and by doing so, it now holds the archive in connection with its business or functions. The fact that it did not heretofore have any specific function in relation to the Magdalen Laundries or the work of the IDC is not, in my view, a determining consideration.

Under section 12(3) of the Act, where a request is received by a public body and the records sought are not held by that body but, to the knowledge of the body, are held by one or more other public bodies, the body must give a copy of the request to the other body or bodies (a) whose functions it considers to be most closely related to the subject matter of the records sought or (b) that the body considers is otherwise most appropriate. It is noteworthy that apart from arguing that the records are essentially held by the originating bodies that hold the originals of those records, an argument I do not accept for the reasons already outlined, the Department has not indicated what body it considers to hold the archive of records, nor has it suggested that it is holding the archive for any one particular public body.

I further note that in its submissions to my Office, the Department did not address the applicant-�s argument concerning the applicability of section 1(i) of the Ministers and Secretaries Act 1924 (the 1924 Act), notwithstanding the fact that my Office provided the Department with details of the applicant-�s arguments when inviting it to make a submission on the case. That section, which provided for the establishment of the various departments of State and the distribution of the various administrative functions, also provides that the then Department of the President of the Executive Council (now the Department of the Taoiseach) would have administrative control of, and responsibility for, such public services and the business, powers, duties and functions as may not for the time being be comprised in any of the departments of State constituted by the 1924 Act.

In essence, the applicant argued that the Department assumed responsibility, pursuant to section 1(i) of the 1924 Act, for a service that could not have been performed by any department of State acting alone. The Department did not address that argument at all in its submissions, an argument that appears to support my finding that it holds the archive in connection with its business or functions.

The Department did, however, argue that it is not responsible for the records of all State departments and that such responsibility for the records of State departments rests with each individual department, referencing section 7(1) of the National Archives Act 1986 (the 1986 Act). Section 7(1) of the 1986 Act provides that departmental records shall, unless they are transferred to the National Archives in accordance with section 8 or are disposed of under subsection (5), be retained and preserved in the department of State in which they were made or are held.

The section also provides that records shall not in any case be disposed of except in accordance with subsection (5); provided that, where more than one copy of such a record exists, the retention and preservation of the original or, if the original is no longer available, of an accurate and complete copy thereof shall suffice. Essentially this allows a public body to dispose of a copy of a record where the original record, or a complete copy of the record, is retained and preserved.

I am satisfied that section 7(1) of the 1986 Act has no bearing on the question of what body holds the archive of records at issue in this case, given my finding that the archive of records is a distinct set of records in its own right. The provision is directed towards the retention and preservation of records and does not appear, in its own terms, to establish any broader principle regarding legal responsibility for departmental records.

In any event, the obligation under section 7(1) applies to the department of State in which the records were madeor are held(my emphasis). This suggests that the obligation to retain and preserve records can apply to a department other than that where the records were made.

I also note that under section 2(2) of the 1986 Act, departmental records are defined as including records made or received, and held in the course of its business, by a department of State or any body which is a committee, commission or tribunal of enquiry appointed from time to time by the Government, a member of the Government, or the Attorney General and includes copies of any such records duly made. This suggests that the archive of records in this case are -�departmental records-�.

Having carefully considered the matter, I find that the Department lawfully holds the archive of records in connection with, or for the purpose of, its business or functions.

The Department also argued that access to the records of the archive is restricted. It referenced the following extract from the Report of the IDC:

-�The nature and content of these records, many of which contain sensitive personal data, means that restrictions will apply in relation to access to the archive, in accordance with relevant legislation and just as applies to the originals from which these copies were drawn.-�

The Department said that this extract applies restrictions not simply to the contents of the records but explicitly to access to the actual archive itself. It argued that this recognises that many of the records contain sensitive personal information and that the restriction is broader that the exemption for personal information that would apply more generally in the ordinary course of processing freedom of information requests.

The Department added that on the understanding that access to the archive as a whole should be restricted, and as it consists of records of a third party, it was deposited with and accepted by the Department for safekeeping. It said it does not possess any scope or discretion to waive application of the restrictions and for this reason, the archive is kept in secure storage in a locked room with restricted access. It also argued that the recent clarification of the law and the meaning of held supports its position in respect of its refusal of the FOI request.

If it is the Department-�s argument that it is not entitled to access the archive by virtue of a restriction imposed by the IDC, I disagree. The evidence in this case is distinguishable from the Drogheda Review case. The record at issue in that case was a transcript of a meeting the requester had with the reviewer as part of the review. Following the conclusion of his independent review, the reviewer, a former High Court judge, delivered to the Department of Health a number of sealed boxes of records containing such transcripts with an accompanying letter in which he set out the basis upon which the boxes were being delivered to the Department. He stipulated that the boxes of records deposited may not be disclosed or opened in any circumstances except by court Order for Discovery, of which he wished to be notified. He stated that the boxes contained information he received on the assurance he had given to each participant in the review that their communications with the review would be treated as confidential and that in the absence of such assurance, he was satisfied that many individuals would not have participated in the review.

Separately, the reviewer indicated that he had made it clear to the participants that the transcripts were exclusively for his use only and would not be made available to anyone else, and that the records were essentially his documents that he had lodged with the Department for safekeeping.

The Supreme Court found that the High Court was correct in its analysis that the reviewer was entitled to settle the terms upon which he would obtain cooperation from persons who contributed to the review and was entitled to impose terms and conditions when sending the documents to the Department, and that the Department accepted them into their custody on those terms. It noted that this conclusion of the High Court was reached in accordance with the evidence of the communications between the Department and the reviewer.

In this case, the Department relied on the extract cited above from the Report of the IDC to support its claim that it accepted the archive on the understanding that access to the archive as a whole should be restricted. It seems to me that the extract in question is an acknowledgement by the IDC of the sensitivity of the records in the archive and of the fact that restrictions on access will necessarily apply,in accordance with relevant legislation(my emphasis). This is not the same as the IDC imposing terms and conditions on the Department such as arose in the Drogheda Review case, nor did the IDC claim ownership of the records. Indeed, the IDC expressly acknowledged that maintenance of the records of the archive together in a single location would be a concrete outcome to the Committee-�s work and -�may be a resource for future research-�. It seems to me that the Department may be conflating the two distinct issues of whether the records are held by it and if so, whether a right of access to the records exists.

It is worth noting that the FOI Act contains strong protection for personal information and for information obtained by public bodies in confidence. Indeed the Act specifically recognises the public interest in the protection of the right to privacy, both in the language of the relevant exemption provision and in the Long Title, which makes clear that the release of records under FOI must be consistent with the right to privacy. Furthermore, the Department itself has acknowledged that the original records held by the various public bodies in their original files and locations -�are subject to relevant legislation regarding access to information in the normal way.-�

In the circumstances, I see no reason why the Department would not be entitled to access the information contained in the archive of records. In conclusion, I find that the Department is in lawful possession of the records at issue in connection with, or for the purpose of, its business or functions and that it is also entitled to access the information in those records. I find, therefore, that the records at issue are held by the Department for the purposes of the FOI Act.

Accordingly, I find the Department was not justified in refusing the applicant-�s request on the basis that the records are not held by it for the purposes of the Act. I find that the appropriate course of action in this case is to annul the decision of the Department and to remit the request to the Department to be processed afresh. If the applicant is unhappy with the Department-�s new decision on the request, she will be entitled to an internal review and to apply to my Office for a review of the Department-�s decision, in the normal course.

For the benefit of the applicant, I must explain that I am not in a position to direct the Department to provide for the immediate release of the records sought. If any relevant records matching the description of those specifically sought are held within the archive of records, it will be incumbent upon the Department to consider whether a right of access exists having regard to the provisions of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant-�s request on the ground that it does not hold the records sought for the purposes of the Act. I direct the Department to undertake a fresh decision making process in respect of the applicant-�s 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.

Peter Tyndall

Information Commissioner