Whether TUSLA was justified in refusing access, under section 15(1)(a) of the Act, to records relating to the applicant’s time in care on the ground that no relevant records could be found

26 March 2021

Background

On 3 November 2020, TUSLA received a request from the applicant for access to records concerning her time in care in as a child. In a decision dated 31 December 2020, TUSLA refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or could be located.  By letter dated 15 January 2021, the applicant sought an internal review of that decision, following which TUSLA affirmed its original decision. On 26 February 2021, the applicant sought a review by this Office of TUSLA’s 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 submissions made by TUSLA in support of its decision. During the review, the investigating officer provided the applicant with details of the TUSLA’s submission wherein it outlined the steps taken to locate relevant records. The applicant did not provide any submissions but indicated that she did not wish to withdraw her application for review.  Therefore, 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 TUSLA was justified in refusing access, under section 15(1)(a) of the FOI Act, to any records relating to the applicant’s time in care on the ground that no relevant records exist or can be found.

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.

As I have indicated above, the Investigating Officer informed the applicant of the details provided by TUSLA as to why no records could be found and of the searches undertaken to locate the relevant records and I have had regard to them for the purposes of this decision. I also note that the applicant did not wish to provide any further information to support her contention that further relevant records might exist. 

In its submissions to this Office, TUSLA said that comprehensive searches which were undertaken in the appropriate departments and after consultation with all relevant staff members.  It said it carried out comprehensive searches for relevant records in the relevant Area Manager’s office, the Social Work Department and also the Archive Office. The searches undertaken were both manual and electronic. The search criteria included searching under the applicant’s name, address, date of birth. These searches would have been conducted with the specific details as provided by the applicant as part of her FOI request and also generic searches.  TUSLA confirmed that the applicant had provided sufficient information so that the aforementioned searches could be undertaken for her records but unfortunately no records could be located.

In addition, TUSLA provided a full list of the areas that it carried out searches and stated that all relevant areas/departments in the Social Work departments in Cork were searched.  It added that consultation took place with all relevant individuals and staff in the Social Work Department in Cork in their efforts to locate records and regrettably, after comprehensive searches had been undertaken, there were no records identified and therefore no records available for release to the applicant.

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. This Office may conclude that an FOI body has taken all reasonable steps to locate relevant records even where records were known to have existed but cannot be found. The Act does not require an FOI body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.

Having considered the details of the steps taken by TUSLA and its explanation as to why no records can be found, I am satisfied that TUSLA has taken all reasonable steps in an effort to ascertain the whereabouts of records coming within the scope of the applicant’s request. I find, therefore, that TUSLA was justified in refusing access to records sought 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) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA to refuse, under section 15(1)(a), the applicant’s request for records relating to her time in care.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty

Senior Investigator