Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the foreshore or the seabed of Lough Foyle, Co. Donegal on the ground that no further records exist or can be found

16 March 2021

Background

In a request dated 8 November 2020, the applicant sought access to copies of all documents held by the Department relating to the foreshore or the seabed of Lough Foyle, Co. Donegal under the State Property Acts, and a colour copy of a detailed map that identifies what parts of the foreshore or seabed of Lough Foyle are owned by the Republic of Ireland. In a decision dated 4 December 2020, the Department partially granted the first part of the request, providing certain records with redactions made under Section 33 (1) (c) and (d) of the FOI Act, and refused the second part of the request under section 15(1)(a) of the FOI Act on the ground that the record in question did not exist.

The applicant sought an internal review of that decision. On 15 January 2021, the Department varied its original decision with respect to the first part of the applicant’s request, and released the records without redactions. It affirmed its decision with respect to the second part of the applicant’s request on the ground that the record sought did not exist.

On 25 January 2021, the applicant sought a review by this Office of the Department’s decision on the ground that further relevant records apart from those already released should exist. He said he was aware that other records exist as he had seen them, including colour maps and some inter-government discussion with the UK, Northern Ireland and the Loughs Agency.

During the course of the review, the investigating officer sought submissions from the Department on the searches carried out to locate relevant records and the reason(s) it was of the view that no further records existed. She subsequently provided the applicant with the details of the searches carried out by the Department and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that the Department was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. The applicant responded on 26 February 2021 indicating that he wished for the review to progress to a formal, legally-binding decision.

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 the applicant’s comments in his application for review and to the correspondence between this Office and both the applicant and the Department 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 Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the foreshore or the seabed of Lough Foyle, Co. Donegal on the ground that no further relevant records, apart from those already released, exist or can be found.

Analysis and Findings

Section 15(1)(a) 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. The role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in such cases generally consists of the steps actually taken to search for the 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 made submissions to this Office in which it provided its reasons for its position that it would not hold any further relevant records and details of the searches conducted for any relevant records. As this Office has already provided the applicant with the relevant details, I do not consider it necessary to repeat them in full here.

In summary, the Department stated that it has only indirect and peripheral responsibility for Lough Foyle. It stated that amongst its functions, the Department’s North South Programmes Policy Unit has responsibility for corporate and financial governance guidance for North South Implementation Bodies. This includes the Loughs Agency, mainly in the context of business and corporate plans, annual reports, etc. It said that any of the normal circumstances in which it would hold records relating to its role under the State Property Acts do not apply to Lough Foyle in this instance. It stated that therefore, the further records sought do not exist.

It also submitted the following information in respect of its position that no further records existed:

• The Department of Foreign Affairs takes the lead in jurisdictional and related matters.
• Practical issues relating to foreshore and seabed are dealt with by the Loughs Agency directly.
• The Department of the Environment, Climate and Communications is the Irish parent Department for the Loughs Agency and has day to day responsibility for managing the activities of the agency, in conjunction with the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

The Department stated that the records that had been identified and released to the applicant concerned matters (Parliamentary Question, political representation and Compulsory Purchase Order) being referred incorrectly to the Department for response, on the assumption that the Department had a role under the State Property Acts, and the Department’s attempts to ensure that they were redirected appropriately.

With regard to searches, the Department stated that its State Property Section checked the paper files held in the Section, did an electronic search to identify any files with “Lough Foyle” in the title, searched electronic files and correspondence, and checked with other Sections that might have an involvement in matters related to foreshore or Lough Foyle. The Department stated that these searches did not turn up any records other than those already released to the applicant.

Having considered the details of the searches undertaken and its explanation as to why no further 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 further records apart from those already released on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Having regard to the details of the Department’s submission, it is possible that records of the type sought by the applicant may be held by the Department of Foreign Affairs. As such, the applicant may wish to consider submitting a fresh request to that Department, if he has not already done so.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the FOI Act, to any further records relating to the foreshore or the seabed of Lough Foyle other than those already released on the ground that no further 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