Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records from 1993 and 1994 relating to the applicant that were signed under the official seal of the Minister for Justice on the ground that it does not hold the records sought

21 May 2020

Background

In a request dated 16 September 2019, the applicant sought access to all Ministerial orders, records and documents, dated 1993 and 1994, signed under the official seal of the Minister for Justice with his name on them.  In a decision dated 19 December 2019, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found.

The applicant sought an internal review of the Department’s decision. In its internal review decision dated 21 January 2020, the Department explained that it located a “Seal Book” which contains a record of each time the Minister’s seal is used, the record comprising the type of instruction sealed and the person’s name. It said the book contained details relating to the applicant’s name but that it was not possible to determine if the information referred to the applicant or to an individual of the same name. It refused the request under section 37 of the Act.

On 23 January 2020, the applicant sought a review by this Office of the Department’s decision. During the course of the review, the Department informed this Office that while it had located a Seal Book for the relevant period, it does not hold copies of the records signed under the seal. Mr Crowley of this Office wrote to the applicant and informed him of the Department’s position and of his view that the Department was justified in refusing the request on the ground that it does not hold the records sought. He offered the applicant an opportunity to withdraw his request or to make a submission in response to his views. While the applicant indicated that he did not wish to withdraw his application for review, he made no submission in response to Mr Crowley’s views.

In the circumstances, I have decided to conclude my review by issuing a binding decision in this case. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as described above and to the correspondence 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, under section 15(1)(a) of the Act, in refusing access to records from 1993 and 1994 relating to the applicant that were signed under the official seal of the Minister, on the ground that the records sought do not exist or cannot be found after all reasonable steps have been undertaken to locate them.

While the Seal Book the Department located in this case records the use of the seal, it is not a record signed under official seal by the Minister. Accordingly, this review is not concerned with whether a right of access exists to the Seal Book itself or to any entries in the Seal Book.

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 explained that the Seal Book is the only central repository of all documents signed under seal by the Minister for Justice and it was necessary to locate this book to identify the Division, Agency or Body who would hold the original documents. It said that the Seal Book for the period in question contained a number of entries relating to an individual with the applicant’s name but that it was not possible to ascertain if the person named in the Seal Book was the applicant.

The Department noted that the entries related to a prison. It said it made enquiries of the relevant sections dealing with prison policy, governance and operations, who confirmed that neither the original signed and sealed documents in such cases, nor copies of such records, would be held by the Department. The Department added that it made enquires with the Irish Prison Service regarding the procedures in relation to such records, and was informed that such documents would be held locally in the relevant prison.

Having considered the Department’s submissions, I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant. Accordingly, I find that the Department was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request on the ground that it does not hold any such records.

Given the Department’s explanation of the matter, as previously suggested by Mr Crowley of this Office, it is open to the applicant to make a fresh request to the Irish Prison Service for a copy of the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse, under section 15(1)(a), the applicant’s request for records from 1993 and 1994 relating to him that were signed under the official seal of the Minister on the ground that it does not hold the records sought.

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