Whether the Department was justified in its decision to refuse the applicant’s request for access to additional records relating to his referral to the Chief Justice request dated 23 July 2019 other than those already released to him on the ground that no further relevant records exist or can be found

6 April 2020

Background

On 12 August 2019, the applicant submitted a request to the Department for all documents and communications relating to a request he submitted to the Minister of Justice and Equality (the Minister) on 23 July 2019 for a referral to the Chief Justice under section 109 of the Garda Síochána Act 2005.

As the Department failed to issue a decision on the request within the statutory time-frame the applicant sought an internal review of the deemed refusal of his request on 13 September 2019.  As the Department also failed to issue an internal review decision within the required time-frame, the applicant sought a review by this Office of the Department’s deemed refusal of the request on 8 October 2019.

Following correspondence with this Office, the Department issued its effective position to the applicant on 14 October 2019, wherein it part-granted the request.  It released a number of records to the applicant, redacting certain information under section 37(1) on the ground that release of the redacted information would involve the disclosure of personal information relating to third parties.  On 11 November 2019, the applicant informed this Office that he wanted the review to proceed on the ground that the records he received did not relate to his section 109 referral request dated 23 July 2019 but instead referred to an earlier section 109 referral request from 2018. Indeed, I note that all of the records released pre-dated the applicant’s request of 23 July 2019 for a section 109 referral.

During the course of the review, the Department identified a number of additional records and released them to the applicant, six of which were relevant to the current FOI request.  The remaining records related either to the earlier section 109 referral or were dated after 12 August 2019 and did not, therefore, come within the scope of the request that is the subject of this review.

The Department also provided this Office with details of its record management practices and of the searches carried out to locate all relevant records. Ms Swanwick outlined the details of those searches to the applicant and informed him of her view that the Department was justified in refusing access to any additional records under section 15(1)(a).  She invited the applicant to make a further submission on the matter.

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant’s request for access to additional records relating to a section 109 referral request he submitted to the Minister on 23 July 2019 other than those already released to him on the ground that no further relevant 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 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 its submissions to this Office, the Department provided details of its record storage practices and the searches conducted in response to the applicant’s request.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short it described the electronic and physical searches carried out and outlined its view that no records had been destroyed.  The Department explained that documents or emails of note should be stored on the divisional document library and/or other electronic systems (e.g. e-submissions, e-PQs, or e-Correspondence) and/or on the paper file. 

The Department stated that the Policing Division document library was searched using the applicant’s email address, the applicant’s name and derivatives of his name, both with and without the addition of his location and “109”, and the relevant reference number.  In relation to e-submissions the Department stated that former staff members of the Policing Division, which is now dissolved, were asked to carry out a search in relation to the applicant.  It also stated that the ePQ system was searched for the year 2019, using the search “GSOC 109”.

The Department outlined that correspondence that is received from an external source is recorded on its e-Correspondence system.  It stated that the system was searched using the relevant reference number and explained that where correspondence of note happens outside the system, it should be stored in either the divisional document library and/or on the paper file.

In relation to paper files, the Department stated that where original documents are received or a physical record is required to maintain records in relation to an ongoing matter, a paper file is created and registered on the Department’s file tracking database.  It noted that the database was searched using the same terms as the Policing Division document library.

It is evident from the Department’s submissions to this Office that it considered the applicant’s referral request dated 23 July 2019 to be a continuation of his earlier referral request from 2018.  In describing the types of records which would typically be created in a case such as this, it listed specific categories of records, which corresponded to records released that related to the 2018 referral request, including communications with the Garda Síochána Ombudsman Commission (GSOC).  It categorised the six records released during the course of this review that related to the 23 July 2019 referral request as “further correspondence between the Minister and the complainant”.  It explained that if a complainant brings no additional information of note to the Minister’s attention, it would not expect further correspondence with GSOC.

I also note that one of the records released is an email from the Private Secretary to the Minister dated 6 August 2019 in which the Private Secretary informed the applicant that there appeared to be insufficient evidence provided which would alter the decision previously reached and that the matters would seemingly be better addressed in accordance with the complaints policy put in place by GSOC. On the same day, the applicant replied by way of three follow-up emails, one of which clarified that his referral request from 2018 related to a different matter than the referral request dated 23 July 2019. 

In response to queries from this Office as to the steps taken by the Department following receipt of the applicant’s clarification, the Department outlined that, given its assessment of the applicant’s correspondence dated 23 July 2019, as conveyed to him on 6 August 2019, it did not consider a further response to the applicant on the matter necessary.  It did, however, provide evidence of further correspondence with him following receipt of his FOI request on 12 August 2019, including in relation to a further complaint which he had submitted on 2 September 2019.  As noted above, any records created after the date of the FOI request do not come within the scope of this review.

The general thrust of the Department’s position is that no further relevant records exist apart from those already released.  It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice. 

In all the circumstances and having considered the Department’s explanation as to why no further relevant records exist apart from those already released, I am satisfied that the Department was justified in refusing access to further records relating to the applicant’s referral to the Chief Justice request dated 23 July 2019 on the ground that no further relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request for further records relating to his referral to the Chief Justice request dated 23 July 2019 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