Whether the Department was justified in refusing access to records which relate to a certain herd number under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act
14 July 2021
Background
On 6 May 2020, the applicant made an FOI request for a copy of all documentation, electronic and otherwise, held by the Department in relation to a named herd number between 1 January 2015 and 6 May 2020. The applicant requested that these records be furnished to her Solicitors.
Following communications between the applicant and the Department, on 17 June 2020 the applicant’s Solicitors, who are referred to as “the applicant” for the purposes of this review, submitted a refined FOI request to the Department seeking:
“1. Records of all animals in and out of our client’s herd since 2015;
2. Copies of all compliance certificates relating to animals moved in and out of our client’s herd number since 2015. We requested copies of all certs of compliance from an officer of the Department on 6 February 2020 and he has failed to furnish same;
3. All documentation relating to the appointment of a named individual as our client’s herd keeper in February 2017. Who requested that the named individual be appointed herd keeper? All records in relation to internal correspondence within the Department relating to the appointment of the named individual;
4. Correspondence dated from April 2020 to date between the Department and a named mart employee dealing with the re-issuing of a cheque to the herd keeper which was originally issued to our client for an animal that was allegedly in our client’s herd;
5. All internal correspondence, memos etc. within the Department relating to our client’s herd from January 2017 to date.”
The Department located records falling within the scope of the applicant’s request in three separate divisions. On 14 and 15 July 2020, each of these divisions issued a separate decision. The Department located a total of 164 records, it granted access to 65 records in full and it refused access to the remaining 99 records in full or in part under sections 31(1)(a) or 37(1) of the FOI Act.
On 23 July 2020, the applicant requested an internal review of the Department’s decision. The applicant contended that the Department ought to hold further records that fall within the scope of the request. On 13, 17 and 18 August 2020, each of the relevant divisions issued an internal review decision. The Department affirmed its decision to refuse access in full or in part to 99 records under sections 31(1)(a) or 37(1) of the FOI Act. The Department located four additional records and it granted access to three of these records in full and it refused access to part of the fourth record under section 37(1) of the FOI Act. The Department said it did not hold any further records which fall within the scope of the request and it sought to rely on section 15(1)(a) of the FOI Act. On 17 December 2020, the applicant applied to this Office for a review of the Department’s decision.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of the Review
During the course of the review, the applicant confirmed that it was not seeking a review of the Department’s decision to refuse access to certain records in full or in part under sections 31(1)(a) or 37(1) of the Act. The applicant contended, however, that further records falling within the scope of the request ought to exist.
This review is solely concerned with the question of whether the Department was justified in refusing to release additional records falling within the scope of the applicant’s request under section 15(1)(a) of the FOI Act.
Findings – reasonableness of searches (section 15(1)(a))
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office’s website at www.oic.ie).
Submissions of the Parties
In its application to this Office, the applicant states that the Department failed to provide movement certificates from 2019 or movement certificates that were processed on its behalf by an external company. It states that the Department failed to provide copies of all compliance certificates relating to animals moved in and out of the relevant herd since 2015, or internal correspondence relating to the appointment of the herd keeper. It states that the Department failed to provide internal correspondence in relation to a farm inspection carried out by an officer of the Department on 17 December 2019 or correspondence between the Department and a named mart employee dealing with the re-issuing of a cheque to the herd keeper.
During the review process, this Office requested the Department to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries in relation to its record-management practices. The Department’s response to these queries was provided to the applicant and is set out in summary here. In its response, the Department said it had located additional records, it provided copies of 23 additional records to this Office and subsequently to the applicant (annexes 1-23). The Department withheld a small amount of information from these additional records on the basis of section 37(1) of the Act.
The Department states that the Animal Identification and Movement Division (AIM) oversees compliance with requirements relating to the movement of bovine animals and relevant details are recorded in the AIM database. It states that following the applicant’s FOI request, the AIM Division provided copies of the movement documents and compliance certificates, which were extrapolated from the AIM system. It states that following communications with this Office, the AIM Division provided copies of the signed and returned documents to the applicant. It states that these are the only relevant records available in the AIM Division.
The Department’s submission provides details in relation to the appointment of a herd-keeper, including information on how the application to appoint the herd keeper was recommended on a specific form, which was signed by two officers of the Department. It states that these records were provided to the applicant and that it does not hold further records in relation to the decision to appoint the herd keeper.
The Department states that the additional records released to the applicant include contemporaneous notes from a farm inspection on 17 December 2019 and a copy of a working document used on the day of a further inspection on 24 February 2020. The Department states that due to an incorrectly notified farm to farm movement, a particular animal was incorrectly registered to the herd owner and not the herd keeper. It states that when the herd keeper subsequently sold the animal at mart, the mart issued the cheque to the herd owner and not the herd keeper. It states that when this issue arose, it emailed the mart and requested that it amend its movement record using the relevant forms. The Department states that it was not involved in the reissuing of the cheque. The Department states that the additional records released to the applicant include a copy of the emails sent from the Department to the Mart.
The Department states that records which fall within the scope of the applicant’s request were located in the AIM Division, the Regional Veterinary Office (RVO) and the Quality Services Unit. The Department provided this Office with details of the searches that were carried out, the systems and files involved in the searches, as well as its methodology for doing so. Details of these searches were shared with the applicant. The Department states that following the internal review request, four additional records were located by the Quality Services Division and it states that it does not hold any further records falling within the scope of the applicant’s request.
Following receipt of the additional records, the applicant provided a further submission. The applicant stated that it was not pursuing the issue of the Department’s reliance on sections 31(1)(a) or 37(1), however it requested a copy of a cheque issued by the Department as referred to in annex 12 and copies of any further records held by the Department in relation to actions taken by it following receipt of a letter from its client which is contained in annex 14. I note that the applicant did not request a copy of any cheque in its FOI request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in its FOI request. As outlined above, the Department’s position is that it does not hold any further additional records falling within the scope of the applicant’s request.
Analysis and Findings
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.
I understand the applicant’s position that further records ought to exist. It is my view that the Department provided reasonable responses to these points. As set out above, the Department followed up the specific points raised by the applicant with the relevant divisions internally and released additional records during the course of this Office’s investigation. It would have been preferable for all relevant records to have been identified and released at the time of the Department’s first instance decision. Nevertheless, I am satisfied that these shortcomings have now been resolved.
Taking into account the search details provided by the Department, its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Department has conducted reasonable searches to locate records relevant to the applicant’s request and I find accordingly.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision, I find that 15(1)(a) of the FOI Act applies to the applicant’s FOI request.
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.
Deirdre McGoldrick
Senior Investigator