Whether Tusla was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for access to all records with his name on them on the ground that no such records exist or can be found

28 January 2021

Background

In a request dated 29 January 2019, the applicant sought access to a copy of all records and notes of complaints and all records that are held in storage with his name on them. As Tusla failed to issue a decision within the prescribed timeframe, the applicant sought an internal review of the deemed refusal of his request on 19 March 2019. Tusla issued its internal review decision on 17 September 2020, in which it refused the request under section 15(1)(a) on the basis that no relevant records existed or could be found after all reasonable searches were conducted. It included some details of the searches conducted in its internal review decision letter. On 12 October 2020, the applicant sought a review by this Office of Tusla’s decision.

During the course of the review, Ms McCrory of this Office provided the applicant with details of the searches undertaken by Tusla in an effort to locate relevant records and informed him of her view that Tusla had taken all reasonable steps to ascertain the whereabouts of relevant records. In response, the applicant provided an extract from a schedule of records he received as part of a previous unspecified FOI request.

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 correspondence between the applicant and Tusla as set out above. I have also had regard to the correspondence between this Office and both the applicant and Tusla 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 Tusla was justified in refusing access, under section 15(1)(a) of the FOI Act, to the records sought by the applicant 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 also 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 Tusla 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.

During the course of the review, Tusla provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no 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, Tusla stated that it had refused the request as there were no records held in the applicant’s name found after comprehensive searches were carried out in the appropriate departments and after consultation with all relevant staff members.

Tusla stated that searches, both manual and electronic, were conducted in a number of offices and Departments, including its archive office using the applicant’s name, address and date of birth as search criteria. It stated that it consulted all relevant staff in the Social Work department in a particular region in an effort to locate any records relevant to the applicant’s request.

As noted above, the applicant provided part of a schedule of records from a previous FOI request. Two of the records on the schedule, both of which were apparently withheld, were described as “Letter from [name] Social Worker Waterford Community Services” and “Letter to An Garda Síochána”. The applicant said that the letter to An Garda Síochána was sent by Tusla, but he provided no other details about the previous FOI request, such as when and to what body the request was made.

Ms McCrory of this Office sought clarification from Tusla as to whether the named Social Worker worked for Tusla, and whether Tusla might, therefore, hold relevant records per the applicant’s contention. In its response, Tusla stated that contact was made with the Area Manager’s Office, Tusla Social Work Department in the region who confirmed that the individual in question was employed as a Social Worker by the HSE.  

Tusla added that it may be possible that the applicant had a previous request processed by the HSE during which child and family services were under its remit, or if post-2014, under the memorandum of understanding that was in place at the time prior to the transition over to Tusla, in which the HSE continued to process requests on behalf of Tusla. It said that it would not hold these FOI records, nor have access to them. It said that depending on the timeframe of the request it could be likely that such FOI records would be destroyed under the Record Retention Policy. It stated that it was not in a position to confirm if historically the applicant did indeed receive records relating to him under an FOI request.

This Office contacted the applicant on 21 December 2020 and asked if he could clarify the context of the schedule he had provided, for example, when that request was made, to which FOI body, what was sought and what was released to him. He was also asked to provide further information as to the nature of his engagements with Tusla that would cause him to believe that it holds records relating to him. The applicant subsequently contacted this Office by phone on 6 January 2021 to clarify the letter, and said he would provide the full schedule to this Office in order to make further inquiries with Tusla. To date, no schedule has been received. It is therefore not possible to clarify with Tusla whether any further searches should have been conducted.

In the absence of any supporting evidence to suggest that Tusla should hold relevant records relating to the applicant, and having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, along with its explanation of why no records relating to the previous FOI request would be held by it, I am satisfied that Tusla 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 Tusla was justified in refusing access to records on the ground that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

With respect to the possible existence of records relating to the letter from the named Social Worker, I would note for the applicant that it is open to him to make an FOI request to the HSE for any records it might hold relating to him.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of Tusla to refuse access to the records sought under section 15(1)(a) of the FOI 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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator