Whether the CPSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to a public duty working group referenced in the 2017 CPSA Annual Report and to records of meetings of the CPSA Commission in which the applicant-™s communications to the CPSA were discussed, on the ground that no relevant records exist or can be found
4 May 2021
Background
In a request dated 20 August 2020, the applicant made a two-part request to the CPSA. The first part was for records and information concerning a working group established in connection with the public duty on public bodies to have due regard to human rights and equality issues, as referenced in the 2017 Annual report of the CPSA. Specifically, he sought all records of all meetings of the group, its composition and terms of reference and, in particular, any details of the working group, workshop, and meeting with Irish Human Rights and Equality Commission referenced in the report. He also sought all records of the policies and procedures which were put in place and the action plan as described in the Annual Report.
The second part was for all records, from 1 November 2017 onwards, of all meetings of the CPSA Commission in which his communications to the CPSA were discussed.
In its decision dated 9 September 2020, the CPSA refused the request under section 15(1)(a) of the Act on the ground that the records sought do not exist or cannot be found after all reasonable steps have been undertaken to locate them. The applicant sought an internal review of that decision, following which the CPSA affirmed its refusal of the request under section 15(1)(a). On 4 January 2021, the applicant sought a review by this Office of the CPSA-™s decision.
During the course of the review, the Investigator provided the applicant with the details of the searches undertaken by the CPSA for relevant records and of its reasons for finding that no such records exist. The applicant made a submission in response.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to correspondence between the applicant and the CPSA as outlined above, and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
This review is concerned solely with whether the CPSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the public duty working group and to records of meetings of the CPSA Commission in which the applicant-™s communications to the CPSA were discussed, on the ground that no relevant records exist or can be found.
Preliminary Matter
In his submissions to this Office, the applicant referred to a comment in the CPSA-™s internal review letter, wherein the internal reviewer said that she did not uphold his request for internal review. The applicant noted that section 21(2) of the Act provides that an internal reviewer may affirm, vary or annul a decision and does not provide for not upholding his request. The internal reviewer confirmed to this Office that she was conveying her decision to affirm the original decision that no records exist, which is evident from her letter. In the circumstances, I am satisfied that the CPSA complied with its obligations to carry out an internal review and informed the applicant accordingly.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was 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 and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
It is important to note that the role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As I have indicated above, during the review the Investigator informed the applicant of the details of the searches undertaken by the CPSA to locate relevant records and of its explanation why no such records exist. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.
On the matter of records concerning the commentary in the 2017 Annual Report concerning the Irish Human Rights and Equality Commission Act 2014 and the working group, the CPSA said that the text was included in the Annual Report at the request of the Director General of the Office as a result of meetings held by the Office of the Ombudsman public sector duty committee. A similar commentary was also included in the Ombudsman-™s Annual Report in 2017. The background to this commentary was to inform the public that the Office of the Ombudsman and the offices coming under its corporate umbrella, including the CPSA, had established a public sector duty committee to examine and implement human rights and equality issues having regard to the Irish Human Rights and Equality Commission Act, 2014. Any records held on the matter are held by the Office of the Ombudsman and not the CPSA. As the Investigator explained to the applicant, it is open to him to make a new FOI request to the Office of the Ombudsman for access to any relevant records it may hold.
On the matter of records of meetings of the Commission at which the applicant-™s communications with the CPSA secretariat were discussed, the CPSA explained that it is still investigating a complaint relating to the subject of his communications. It said the applicant sent correspondence to it in 2017 outlining concerns regarding a recruitment campaign that had been conducted by a body under the remit of the CPSA. It said that other communications were also received concerning the matter. It explained that the applicant was not a complainant in this situation but a third party providing pertinent information to the appropriate organisation. It said the person affected by the perceived wrongdoing in the recruitment campaign is the complainant on whose behalf the CPSA are examining the matter.
The CPSA further explained that the decision to commence an examination of the matter was made by the secretariat of the Commission. It said that complaints are brought before the Commission at a stage when they are ready to be finalised. It said no records exist of the Commission discussing the contents of the applicant-™s communications as the complaint had not been put before the Commissioners at the date of his request.
While the applicant made a submission in response to the Investigator-™s letter, he provided no evidence to suggest that relevant records should exist. Having considered the CPSA-™s explanation as to why no relevant records exist, I find that it was justified in refusing the request under section 15(1)(a) of the Act.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the CPSA to refuse the applicant-™s request, under section 15(1)(a) of the Act, on the ground 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator
