Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further forestry application records and policy records held by the Forest Service other than those already released on the basis that no further relevant records exist or can be found
8 November 2021
Background
The Forest Service of the Department of Agriculture, Food and the Marine is responsible for the development of forestry within Ireland. On 2 April 2021, the applicant, a registered forester, submitted a request for records held by the Forest Service. The records he sought fell into two categories: (1) all records regarding seven different forestry applications made to the Forest Service by his named company (“the forestry application records”) and (2) records containing details of the Forest Service’s inspection policy, referral policy, administration/referral policy regarding native woodland conservation applications, and its complaints procedures (“the policy records”).
In a decision dated 29 April 20201, the Department part-granted the request. The Schedule of Records provided to the applicant listed seven records, one for each forestry application, each record identified as “Documents related to Forestry Licence [Reference Number]”. Each record was said to be part-granted under section 37(1) of the FOI Act, with personal information of third parties redacted. Within each ‘record’ there were between 21 and 99 separate documents, 346 in total.
The applicant wrote to the Department’s decision maker on 10 May 2021 wherein he suggested that a significant amount of material had not been provided to him and that no explanation had been given as to why the policy records he had requested had not been released. He included further details and questions relating to each part of the FOI request. A reply was emailed to him on 31 May 2021 which consisted of notes and responses added, in red, directly into the body of the applicant’s letter, including some information about the various policies and procedures of the Forest Service, and a link to the Customer Service section of the Department’s website. The applicant sought an internal review of the Department’s decision on 8 June 2021 following which the Department affirmed its decision, on the basis that no other material was found apart from that already released.
The applicant sought a review by this Office of the Department’s decision on 6 August 2021. He provided a detailed list of records that he thought should have been released further to his FOI request. In relation to the policy records, he stated that while he was given some details of the Forest Service’s inspection policy, referral policy and policies around native woodland conservation applications (in red, as described above), there was no indication of where this information came from or any references to reports or policy documents themselves.
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 the Department and by the applicant’s comments in his application for review as well as in further communications with this Office. I have had regard to the contents of the records released as well as to further records located by the Department in the course of this review. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
During the course of the review, the applicant confirmed to this Office that he is not seeking a review of the redactions made to the records released to him. Therefore, I am excluding the information withheld under section 37(1) of the FOI Act from the scope of this review.
In its internal review decision, the Department indicated that it had released all relevant records coming within the scope of the applicant’s request and that no other material was found apart from that already released. Accordingly, 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 relevant records on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Preliminary Matters
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Secondly, in his submissions to this Office and correspondence with the Department, the applicant asked a number of questions, including about the process and progress of specific forestry applications. It is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Finally, Section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy me that its decision was justified.
Analysis and Findings
Section 15(1)(a) of the 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. The Commissioner's role in a case such as this 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In an initial submission that the Department made to this Office when forwarding copies of the subject records, the Department acknowledged that the response to the applicant’s follow-up questions on 31 May 2021 should more appropriately have been in a formal letter and not through appended comments in red. It stated that the additional information included in that response relating to the policy records sought by the applicant had been excluded in error from the original decision. However, it stated that no other material, including reports, policy documents or Forestry Programme documents existed that contained references to inspection policies or referral policies. It stated that the Department’s IFORIS (Integrated Forestry Information System) holds documents in relation to forestry licence and scheme applications, and that it had reviewed the material contained within this system as well as any hard copy files and was satisfied that the material supplied in the original decision and the follow-up email was all the material available.
The Investigator from this Office subsequently sought a further focused submission from the Department, referring to the Guidance Notes and Sample Questions on section 15(1)(a) available on the OIC website, in which public bodies are asked to give details of the steps actually taken to search for records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. The Department provided another submission, but it did not answer the specific Sample Questions nor did it more broadly provide details of searches carried out, or information about records management, that went beyond the brief description provided in the initial submission.
The Investigator summarised the forestry application records that the applicant believed were missing from those released to him including names of senders/recipients and approximate dates of emails he believed should be held by the Department, and asked the Department to respond. These records related to just two of the seven forestry applications, both of which were for the Native Woodland Conservation Scheme (NWS). The Department stated that NWS applications are not processed through IFORIS which is why some of the records sought by the applicant do not exist. It did not, however, say where NWS records are processed and/or are held.
In relation to the emails that the applicant had stated were not released, the Department stated that one email had been released but it was contained in a different record than the one referenced by the applicant (as it included references to several applications); in three of the email categories referenced it stated that the ”material sought cannot be found despite the officials concerned searching their records for relevant emails” and in the final category of email referenced, after further searches were carried out, four further records were found and sent to this Office.
The applicant had queried why records relating to complaints he made in regard to one of the NWS applications had not been released. Eight records relating to complaints were found by the Department and sent to this Office. No information was provided as to where these records were located or why they had not previously been identified.
The Investigator asked the Department to explain the basis for its assertion (in its first submission) that it holds no policy records relevant to the applicant’s request, and to describe what searches had been carried out. She also asked where the text came from in the paragraphs provided to the applicant on 31 May 2021. No response was provided to these specific questions.
The onus is on the Department to satisfy this Office that its decision was justified, namely that it was justified in finding that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken. In light of the fact that it has not provided sufficient information about the steps taken to search for relevant records, and that additional records were located in the course of this investigation, I am simply not in a position to find that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. I find that it has not justified its decision to refuse access to any further relevant records on the ground that no further records can be found.
I consider the most appropriate course of action to take at this stage is to annul the decision of the Department in its entirety, the effect of which is that it must consider 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.
When making its new decision, I would remind the Department of the detailed supporting documentation on processing FOI requests available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual which contains, amongst other things, a sample schedule of records and guidance on preparing schedules.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant’s request, under section 15(1)(a) of the FOI Act, for further forestry application records and policy records held by the Forest Service, other than those already released. I direct the Department to conduct a fresh decision-making process on the 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.
Stephen Rafferty
Senior Investigator