Whether the Department was justified in refusing access to records relating to complaints of abuse at two named schools on the ground that the records were created before the effective date of the FOI Act and that the Act does not apply to the records

7 April 2020

Background

On 21 August 2019, the applicant made a request to the Department for records relating to complaints about abuse that allegedly took place at two named schools he attended in the 1970s, since the foundation of both schools. He also sought information as to the location of certain items that he believed were used as part of the alleged abuse and requested information on whether lay teachers had been vetted by the State and Department of Education at the time of the alleged abuse in the 1970s. The applicant framed his request in a series of questions.

On 25 November 2019, the Department refused the applicant’s request. It said the records it located relating to one of the schools identified did not relate to the applicant and were created before the effective date of the FOI Act for the Department (21 April 1998) and that the FOI Act does not apply to such records.

The applicant sought an internal review of the Department’s decision. On 14 January 2020, the Department issued its internal review decision in which it responded to the various parts of the applicant’s original request. It varied its decision in relation to the first part and granted partial access to certain records from 2019 that had been located during the internal review. It affirmed its refusal of records created before the effective date of the FOI Act. It also provided a response to the queries raised at parts two and three of his request. On 28 January 2020, the applicant sought a review by this Office of the Department’s decision.

I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the applicant and the Department as set out above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter.                                        

Scope

Much of the applicant’s letter of 28 January 2020 seeking a review of the Department’s decision is concerned with issues that do not fall to be considered by this Office. For example, among other things, he said he was seeking details of where certain “weapons” were held that were used in carrying out abuse in the schools.

While the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

As I have described above, the applicant’s request was for records relating to complaints about abuse that allegedly took place at two named schools he attended in the 1970s, since the foundation of both schools. I note the Department’s position that the Act does not apply to the records it located, apart from the 2019 records released, as they did not relate to the applicant and were created before the effective date of the Act. Accordingly, this review is concerned solely with whether the Department was justified in refusing access to records in question on the ground that the Act does not apply to them.

Preliminary Matters

It is important to note that I am required under section 13(4) to disregard any reasons the applicant has for seeking access to the records in question. Furthermore, this Office has no role in examining how public bodies carry out their functions generally or in examining complaints about the administrative actions of public bodies in the performance of their functions.

Analysis and Findings

The right of access to records held by public bodies is generally limited to those that were created after the effective date of the FOI Act. In the case of the Department, the effective date is 21 April 1998. Having regard to the nature of the information sought by the applicant and the period for which that information is sought, it is clear that any relevant records, other than those provided by the Department to the applicant, would have been created before 21 April 1998. As such, no right of access to such records exists unless section 11(5) applies.

Section 11(5), provides that access to records created before the effective date may be granted (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester.

In its submissions to this Office, the Department explained that it carried out searches for both pre-1998 and post-1998 records in relation to both schools. It identified two files, one of these date from 1988 to 1992 and refers to another student (not the applicant) and the second record is a non-personal record dating from 1976 to 1978. The Department stated that no records were found in the Child Protection and Parental Complaints Section other than records that it previously released to the applicant.

The Department provided details of database searches undertaken in endeavouring to locate the records sought by the applicant. It detailed exact locations searched including the unit logs of specific databases and keywords used in the search. Searches were carried out for records held in storage and again specific keywords were used. The Department also provided details of its storage, archiving, retention and destruction of relevant records.

On 5 March 2020, Ms Greenalgh wrote to the applicant explaining section 11(5) of the FOI Act and provided the applicant with details of the submissions made by the Department. Ms Greenalgh informed the applicant that no records had been found that related to him personally. He was invited to make any further comments and was offered an opportunity to withdraw his application for review. To this date, the applicant has made no further contact.

As the records located by the Department were created before 21 April 1998 and do not relate to the applicant, the only question I must consider is whether section 11(5)(a) applies, i.e. whether access to the records is necessary or expedient to understand records created after that date. The applicant has not identified any records created after 21 April 1998 that cannot be understood without access to records created before this date. Without an identified record that was created after 21 April 1998, I find that section 11(5)(a) does not apply in this case.

In conclusion, therefore, I find that the Department was justified in refusing the applicant’s request on the ground that the records it identified as coming within the scope of his request were created before the effective date of the FOI Act and that the FOI Act does not provide a right of access to such records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant’s request on the ground that the records it identified as coming within the scope of his request were created before the effective date of the FOI Act and that the FOI Act does not provide a right of access to such records.

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 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