Whether the Department was justified, under section 15(1)(a) of the Act, in refusing to release further records concerning the applicant and a named Division within the Department on the grounds that no further relevant records exist or can be found

27 November 2020

Background

On 29 November 2019, the applicant made an FOI request to the Department for copies of all records from 7 June 2017 onwards (including electronic and audio/video records) held by the Department and its officers concerning himself and a named division of the Department where he works. On 17 December 2019, the Department informed the applicant that it was necessary to extend the period for consideration of his request by four weeks under section 14(1)(a) of the Act due to the volume of records to be examined and considered. On the same date, the applicant sought a review by this Office of the decision to extend the timeframe for considering his request.

On 6 January 2020, the Department contacted the applicant and asked whether he required it to supply records and e-mails already in his possession as part of his request. The applicant confirmed that the Department could omit emails that were sent or copied to him. On 28 January 2020, the Department issued its decision. The Department identified 39 records falling within the scope of the applicant’s narrowed request. It granted access to 15 records in full and it refused access in full or in part to the remaining records under sections 29, 30 and section 37 of the FOI Act. On 28 January 2020, the applicant applied for an internal review of the Department’s decision. 

On 6 February 2020, this Office affirmed the Department’s decision to extend the period for consideration of the applicant’s request under section 14 of the Act. On 14 February 2020, the Department issued its internal review decision, which varied its original decision. The Department stated that following further searches it had located nine additional records and it refused access to parts of these records under section 37 of the Act. On 12 May 2020, the applicant applied to this Office for a review of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the applicant and the Department and to the communications between this Office and both the Department and the applicant on the matter.

Scope of Review

In communications with this Office, the applicant confirmed that he is seeking a review of the Department’s decision solely on the basis that further records falling within the scope of his request ought to exist. The applicant asserts that the Department’s interpretation of the scope of his request was an extremely narrow one. He states that his request related to: (i) all records concerning himself, (ii) all records concerning a named Division. He states that there was nothing in the wording of his request confining it to his interactions with the named Division.

The Department contends that the key phrase in the applicant’s request reads all records “concerning myself and the [named] Division of the Department”. Given this wording, the Department states that its decision to confine the search to records pertaining to the applicant’s interactions with the named Division was a reasonable interpretation of the request.

Preliminary finding

It seems to me that the applicant has sought to break his request into two separate distinct parts i.e. (i) all records concerning himself; (ii) all records concerning the Division where he works. If I were to accept this interpretation, then records concerning the Division but with no connection to the applicant would fall within the scope of the request. The applicant’s request was for all records which concern himself and the division where he works. On the basis of this wording, I am satisfied that it was reasonable for the Department to interpret the request as relating to records which concern the applicant’s interactions with the Division where he works and I find accordingly.

This review is therefore solely concerned with the question of whether the Department was justified in refusing to release additional records falling within the scope of the applicant’s request under section 15(1)(a) of the Act.

Analysis and Findings

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).

Applicant’s Submissions

The applicant has provided this Office with details of further records that he believes are relevant to his request and which the Department ought to hold.  The applicant states that he met with his manager on a number of occasions in 2019 and he saw his manager take notes at these meetings. He provided this Office with an email sent to him by his manager on 21 October 2019 headed “Memo of our meeting on Friday”, which states “We met last week and I raised/we discussed the following items.” The applicant argues that the Department failed to provide notes of this and other meetings in 2019.

The applicant states that he had meetings with two individuals who work in Corporate Affairs on specified dates in October 2019. He said that notes were taken at both meetings, however he was not provided with those notes. The applicant states that he met with a named Director in the Department on a specified date in 2018 and he saw the Director making notes; however he has not been provided with notes of this meeting.

The applicant states that in response to a different FOI request, the HR Division referred to the fact that they hold a very large file on him. He states that this file was not provided following his request for records. He also states that in response to a different FOI request, he received minutes of a steering group meeting dated 27 May 2020. He provided this Office with a copy of the minutes, which state that the applicant’s manager updated the meeting on the outcome of a complaint and the manager will look at CCTV and clarify the position on foot of what is visible from the CCTV footage. The applicant states that his FOI request specifically included audio-visual records; however, he has not been provided with this CCTV footage.

Following the applicant’s submissions, this Office requested the Department to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made, including those specifically mentioned by the applicant.

Department’s Submissions

The Department states that in January 2020, the coordinating officer circulated the request by email to all staff in the Division where the applicant works instructing them to carry out searches for records that could meet the terms of the request. It states that this email was also circulated to one staff member who had transferred out of the Division. The Department states that these staff searched their own e-mail accounts, files stored electronically on shared servers and physical files to locate relevant records. The Department states that on receipt of the applicant’s request for an internal review, the same search process was repeated and a small number of additional records were located.

The Department states that the large HR file to which the applicant refers is his standard personnel file. It states that this file was searched for any records that concern the applicant and the Division where he works within the timeframe of his request. The Department states that the applicant can, if he wishes, make arrangements with the HR Division to view his personnel file.

This Office’s Investigator also sought responses from the Department in relation to the specific examples of additional records that the applicant believes ought to exist. The Department states that it consulted the applicant’s manager and he provided an account of the meeting in October 2019 and stated that he does not usually take notes at meetings of this nature. He states that the reason he sent a memo of this meeting to the applicant was because he believed at that stage that it was necessary for both parties to have same.

The Department states that after consulting with the Corporate Affairs staff members, it located two pages of handwritten notes of one meeting and typed notes of a second meeting between the applicant and Corporate Affairs. It states that these records were not located as part of the original searches as the Department understood that the request did not extend to areas outside of the Division where the applicant works. It states these records were created and are held by staff members from outside of the Division who were called upon to independently investigate complaints received by the Department. The Department provided this Office and the applicant with copies of these notes.

The Department states that it consulted with the named Director and he recalls meeting with the applicant on the date provided by the applicant and that he took notes at that meeting. The Director states that this meeting was to discuss a complaint, but that he did not retain notes of the meeting, as he had no further use for them after he completed his investigation into the complaint.

The Department also states that it consulted with the applicant’s manager in relation to the CCTV footage and he said that while it is his intention to look at the CCTV footage to see what can be determined from it, neither he nor any other Department official is currently in possession of it. The manager states that he has been in correspondence with the complainant’s solicitor seeking access to this CCTV footage, but has yet to receive it from them. I note that this CCTV footage was discussed at a steering group meeting, which took place almost six months after the request at issue here.

Analysis of submissions and Findings

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

From the details provided regarding the searches that took place pursuant to the applicant’s request, I am satisfied that the Department undertook sufficient searches to ascertain the whereabouts of records within the scope of the request. I understand the applicant’s position that he believes further records ought to exist and I acknowledge the specific examples that the applicant provided in support of this assertion. It is my view that the Department provided reasonable responses to these points. As set out above, the Department followed up specific points raised by the applicant with the relevant divisions internally and released additional records during the course of this Office’s investigation. While it would have been preferable for all relevant records to have been identified and released at the time of the Department’s first instance decision, I am satisfied that all relevant records have now been released to the applicant.

Taking into account the search details provided by the Department, the records provided to this Office and its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Department has conducted reasonable searches to locate the records sought and that no additional records exist or can be found. Accordingly, I find that it was justified in its decision to refuse to release additional records on the basis of section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision in this case. I find that the Department was justified in refusing access to additional records falling within the scope of the applicant’s request under section 15(1)(a) of the Act on the basis that they either do not exist or cannot be found after reasonable searches have been carried out.

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