Whether the Department was justified in its decision to refuse the applicant-�s request for access to further records relating to him and to the Department-�s organisational structures other than those already released on the ground that no further relevant records exist or can be found

12 May 2021

Background

On 7 January 2020, the applicant submitted a multi-part request to the Department.  Specifically, he sought access to:

-�1. Copies of all records (including electronic and audio/video records) held by the Department of Agriculture, Food and the Marine and its officers concerning my employment with the above named Department and its predecessors [detail provided].

1a. Copies of all records (including electronic and audio/video records) held by the Department of Agriculture, Food and the Marine and its officers concerning myself and the Special Investigation Unit of the above Department.

2. Copies of all records (including electronic and audio/video records) held by the Animal Health and Welfare Division and its employees concerning myself.

2a. Copies of all records (including electronic and audio/video records) held by the Animal Health and Welfare Division and its employees concerning myself and the Investigations Division of Animal Health and Welfare Division.

3. Copies of records held by the Department of Agriculture, Food and the Marine concerning its relationship with the Animal Health and Welfare Division (-�) i.e. records relating to the origin of the Animal Health and Welfare (Division) entity and how it purports to be a part of DAFM.

3a. Copies of records held by Animal Health and Welfare Division concerning its relationship with the Department of Agriculture, Food and the Marine i.e. records relating to the origin of the Animal Health and Welfare (Division) entity and how it purports to be a part of DAFM.

4. Copies of records showing all directors of Animal Health and Welfare Division.

5. Copies of records held by Veterinary Public Health (VPHIS) concerning myself.

6. Copies of records showing all directors of VPHIS.

7. Copies of records showing all directors of the Veterinary laboratories.

8. Copies of records as to the incorporated status of Animal Health and Welfare Division (if applicable?).-�

The Department issued three decision letters to the applicant.  On 17 January 2020, it issued a decision in respect of its Investigations Division, wherein it refused the applicant-�s request under section 15(1)(a) on the ground that no relevant records could be found.  On 31 January 2020, it issued a decision for in respect of its Veterinary Public Health records wherein it granted access to a small number of records. The decision maker also said he was not familiar with the term -�Director-� of Veterinary Public Health.  On 3 February 2020, it issued a decision in respect of the Animal Health and Welfare Division wherein it granted access to a number of records.

On 14 February 2020, the applicant sought an internal review of the Department-�s decisions. He suggested that many parts of his request had not been dealt with and that it did not appear that the correct people/sections within the Department had been consulted. By way of example, he argued that that part 1 of his request, which he described as relating to his terms of employment, had been ignored. In addition, he asked that his FOI request also be treated as a request under the General Data Protection Regulation (GDPR). On 10 March 2020, the Department issued two internal review decision letters to the applicant wherein it affirmed the three original decisions. 

The applicant sought a review by this Office of those decisions on 9 September 2020. In subsequent correspondence with this Office, he suggested that there were additional relevant records in the Department-�s possession, relating to his employment and organisational structures, that had not been identified.  He said he was not seeking normal day to day work documents.  

During the course of the review, the Department also clarified that records relating to the Veterinary Public Health Division had been released outside of the FOI process.

I have now completed my review and have decided to bring this case to a close by way of a formal binding decision.  In conducting 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 solely with whether the Department was justified in refusing access to additional records coming within the scope of the applicant-�s request other than those already released to him on the ground that no further relevant records exist or can be found.

Preliminary Matter

I note that in his correspondence with this Office, the applicant provided some details as to why he was seeking access to the records in question. Among other things he expressed concerns about the manner in which the Department is structured and managed. This Office has no role in examining the matters about which the applicant has expressed concerns. Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded.

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 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. 

In submissions to this Office, the applicant stated that the Department ought to hold further records falling within the scope of his request. In particular, he highlighted the absence of records relating to his employment and organisational structures within the Department. Ms Swanwick of this Office sought answers to detailed queries about the searches undertaken by the Department.  Submissions were received from the Department-�s Investigations Division, Veterinary Public Health Division, Animal Health and Welfare Division, and the FOI/Corporate Affairs Unit.

Parts 1a to 8

In its submissions to this Office, the Investigations Division said it was established in 2014 as part of an on-going modernisation of the structures of the Department and the wider public service reform process, and that it subsumed the Special Investigations Unit at that time. It said that only part 1a of the request was relevant to it and that all staff members were asked to search their emails and electronic files. It said the Head of Division searched his email by name and key word, individually reviewed his electronic files, and searched all relevant paper files.  It added, in respect of part 1 of the request, that employment records are not retained at divisional level and would normally be held by the HR Unit.  Furthermore, the Investigations Division explained that it is not part of the Animal Health and Welfare Division.

The Veterinary Public Health Division said that the emails of eight regional managers and common folders on relevant shared servers were searched using the applicant-�s surname name as a search term and that a number of paper files were examined. It said there would be no expectation that further records relating to the applicant would or should exist in the Veterinary Public Health Division. In respect of part 6 of the applicant-�s request, it explained that it was not aware of the term -�Director of Veterinary Public Health-�.  It also noted while there had been Director of Operations within the Veterinary Service, that individual did not have the title of -�Director of Veterinary Public Health.-�

The Animal Health and Welfare Division noted that on receipt of the original FOI request a member of staff was tasked with searching for records. It outlined that the staff in the division were asked to search their personal and shared email addresses using the applicant-�s name as a search term. It also noted that its shared drive was also searched. In total, three emails were found and were released. It said that there would be no expectation that further records relating to the applicant would or should exist in Animal Health and Welfare Division. In providing details regarding listings within the Department-�s email directory, the Animal Health and Welfare Division also noted that they are imprecise and that the term -�Animal Health and Welfare-� appears to sometimes be used as a -�catch-all-� category that is attributed to staff who have any involvement with veterinary matters, animal health, or animal welfare, even if they do not work within the Animal Health and Welfare Division.

The FOI/Corporate Affairs Unit outlined that although the HR Unit was consulted in respect of the applicant-�s request, a decision maker was not nominated, due to an internal process that was underway at the time.  

Under section 12(1)(b) of the FOI Act a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.  As such, there is some onus on the requester to identify what records are actually being sought.

The general thrust of the applicant-�s position is that a corporate entity managed by directors has been formed and is responsible for the running of the Department. In his submissions to this Office, he explained that in respect of parts 1a, 3, and 3a of his request, he was seeking access to documents relating to changes in contracts and to information regarding how, when, and by whom the new corporate entity was set up. He also argued that the HR Unit ought to have been involved in the processing of his request. Notwithstanding the applicant-�s belief that records supporting his position exist, he has not provided any evidence to suggest that this should be the case. I note that the Department-�s organisational structure and a detailed organogram can be viewed on its website. While certain individuals appear to have the title -�director-�, I have no reason to believe that they are directors of a corporate entity, as inferred by the applicant.  It is the Department-�s position that the request refers to organisational structures which do not and have never existed. While the applicant may disagree with the Department-�s position, I have no reason to doubt it.

As I have outlined above, the remit of this Office is confined to considering whether the decision taken by the Department on the applicant-�s FOI request was in accordance with the provisions of the FOI Act. In all the circumstances, 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 parts 1a to 8 of the applicant-�s request. I find, therefore, that the Department was justified in refusing access to additional records relating to parts 1a to 8 of the applicant-�s request under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist.

Part 1

At part 1 of his request, the applicant sought access to records held by the Department concerning his employment. In his submissions to this Office, the applicant outlined, in essence, that while three records had been released to him by the HR Unit under data protection legislation he was not satisfied that all relevant records had been provided. I am satisfied that the HR Unit ought to have been involved in the processing of part 1 of his request. As such, I am not in a position to find that the Department carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of part 1 of the applicant-�s request. I find, therefore, that the Department was not justified in refusing access to records relating to that part under section 15(1)(a) of the FOI Act.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the Department with respect to part 1, the effect of which is that the Department must consider that part of the applicant-�s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department-�s decision.

Finally, as it appears that a number of relevant records have been released to the applicant under data protection legislation, I wish to note that, in processing part 1 of the request afresh, the Department must identify all records it holds that come within the scope of the request.  If it seeks to rely on section 15(1)(i), which provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned, it should ensure that it specifically identifies which records were previously released to the applicant and are available to him.  The Department must consider each record for release under the terms of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department in this case.  While I affirm its decision to refuse access coming within the scope of parts 1a to 8 of the applicant-�s request under section 15(1)(a), I annul its decision in respect of part 1 of the request and I direct the Department to conduct a fresh decision-making process in respect of that part.

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