Whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to records relating to test excavations, ground scans, or surveying that took place at two named former mother and baby homes in 2019 on the ground that it holds no relevant records

15 February 2021

Background

In a request dated 9 September 2020, the applicant sought access to the state pathologist's reports, emails, records, and documents relating to the test excavations, ground scans, or surveying, that took place at two named former mother and baby homes in 2019.

As the Department failed to issue a decision on the request, the applicant sought an internal review of the deemed refusal of the request on 19 October 2020. The Department issued its internal review decision on 27 October 2020, wherein it refused the request under section 15(1)(a) on the ground that it no relevant records could be found. It included some details of the enquiries made and noted that the Commission of Investigation into Mother and Baby Homes and Certain Related Matters (the Commission) was established by the then Department of Children and Youth Affairs (DCYA) in 2015. It suggested that DCYA might hold relevant records. On 3 December 2020, the applicant sought a review by this Office of the Department’s decision.

During the course of the review, the investigating officer sought submissions from the Department on the searches carried out on foot of the request. She provided the applicant with details of the Department’s submission and of its explanation as to why no relevant records could be found. She informed the applicant of her view that the Department was justified in refusing the request under section 15(1)(a) of the FOI Act and invited her to make a submission on the matter. No response has been received to date.

I have decided to conclude my review by issuing a binding decision on the matter. In carrying out my 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 with whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the test excavations, ground scans, or surveying, that took place at two named former mother and baby homes in early 2019 on the ground that no 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 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.

During the course of the review, the Department provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Department said that the Commission was established by DCYA and that it had no role in its establishment. It said no records could be found following searches and consultations conducted with various members of staff in the Department and the Office of the State Pathologist. It said the Office of the State Pathologist was not involved in any work at the two sites named in the request. It said it consulted with staff in the Criminal Justice Performance and Compliance Function of the Department and the Office of the State Pathologist, and staff in both of these areas of the Department stated that they held no records.

In her application for review to this Office, the applicant said she was assured a test excavation was carried out at the first named mother and baby home by the Commission. She said she understood a similar test excavation was carried out at a third named site and that the State Pathologist attended that scene and wrote a report. She said she could not see how the State Pathologist did not attend the scene of the first named site when there was confirmation that children are buried at the site and that there are remains there. She argued that there should be a report by the State Pathologist for this test excavation.

The Department was asked to address this contention in its submissions to this Office. In response, it said the Office of the State Pathologist advised that, when directed to do so by the relevant coroner, it performs post mortem examinations in cases of sudden, unexplained death where there is a criminal or suspicious element. It noted that according to the Commission’s fifth interim report (which can be found on the Commission’s website), there were no suspicious circumstances surrounding the deaths at the first named former mother and baby home. The Department said that, as a result, these deaths were not reported to the coroner and the services of the Office of the State Pathologist were not required.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Department was justified in refusing access to relevant records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Department to refuse the applicant’s request for records relating to test excavations, ground scans, or surveying that took place at two named former mother and baby homes in 2019 on the basis that no relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator