Whether the IPS was justified in refusing, under section 15(1)(a) of the FOI Act, access to particular records relating to meetings between the applicant and the Governor of a prison concerning the management of the applicant’s prison term and related matters

30 October 2020

Background

The applicant’s FOI request to the IPS of 18 January 2019 sought access to

(i) records of any meetings between him and the Governor of a particular Prison (the Governor) in the context of Prison Rule 58(1)(i) and (ii);
(ii) any records of the Governor’s submissions to the Director General of the IPS (the Director) in relation to the future management of the applicant’s prison term and associated recommendations; and
(iii) any records of the Director’s replies to the records at (ii).

The IPS did not issue a decision on the request within the timeframe set out in the FOI Act, which amounts to an effective refusal of the request. On 26 July 2019, the applicant sought an internal review. On 3 October 2019 the IPS refused the request under section 15(1)(g) on the basis that it formed part of a pattern of manifestly unreasonable requests.

On 6 March 2020, the applicant’s solicitor provided this Office with a copy of their client’s application for a review of the IPS’s decision, which was dated 31 January 2020. During the review, the IPS said that it now relies on section 15(1)(a) of the FOI Act, i.e. that the requested records do not exist.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to correspondence between this Office, the IPS and the applicant and the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the IPS was justified, under section 15(1)(a), in refusing the applicant’s request for records relating to the management of his prison term on the grounds that no relevant records exist or can be found.

Findings

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

In considering section 15(1)(a) in this case, it should be noted that this Office has no remit to examine, or make findings on, whether or not the IPS should have created further records, the level of detail in records that were created, or the IPS’s record management practices generally. Furthermore, as has been explained to the applicant, this Office has no role in determining whether the Governor should perform the various functions that the applicant contends he should carry out.

The IPS says that its letter to the applicant’s solicitors dated 26 November 2019 explains how the Governor’s obligations under Rule 58 of the Prison Rules are fulfilled by the role of the Integrated Sentence Management (ISM) coordinator in the Prison and Sentence Review Meetings. It says that the Governor states that no records exist in relation to any meetings with the applicant in the context of Prison Rule 58. The IPS also says that the Governor does not forward submissions or recommendations to the Director in relation to the future management of a prisoner’s term of imprisonment.

The applicant says that he has not been asked by the Governor to attend a meeting further to Prison Rule 58. He also says that the IPS’s submission is misleading, in that any submissions or recommendations made by the Governor are obliged to be contained in a report. This could be taken as an argument that the IPS’s submission is concerned with the existence of submissions or recommendations in their own right rather than with the existence of discrete reports that contain any such submissions or recommendations, which were the subject matter of the applicant’s request. The IPS’s position is that the Governor’s obligations are met by the functions performed by the ISM coordinator and, accordingly, that the Governor does not forward any documentation to the Director of the sort requested by the applicant.

It seems to me that the applicant’s FOI request seeks to establish that the Governor did not meet with him further to Prison Rule 58 and that the Governor did not prepare the reports that the applicant maintains he should have created. It is not for me to comment on the action taken by the IPS in relation to Prison Rule 58. The IPS’s submission makes it clear that records covered by parts (i) and (ii) of the request do not exist. In such circumstances, it follows that records covered by part (iii) do not exist.

Based on the IPS’s submission, I am satisfied that the IPS was justified in refusing the request under section 15(1)(a) on the ground that the records sought do not exist. Accordingly, there is no need for me to consider the IPS’s initial refusal of the request under section 15(1)(g).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s refusal of the applicant’s request 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.

Deirdre McGoldrick

Senior Investigator