Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records regarding the applicant-™s submission to the Department relating to a superannuation appeal and the subsequent handling of that submission, on the ground that no further records exist or can be found
15 August 2022
Background
In August 2020, the applicant submitted a superannuation appeal under agreed Internal Dispute Resolution (IDR) procedures to the Minister of Public Expenditure and Reform (DPER) via the Minister of the Department of the Environment, Climate and Communications (the Department). In a request dated 17 February 2021, he sought access to any information regarding his submission to the Departments and the subsequent handling of it. He also submitted a similar request to DPER on 22 February 2021.
In a decision dated 18 March 2021, the Department granted the request, providing a total of nine records, all of which were created before the applicant had submitted his superannuation appeal. The applicant sought an internal review of that decision on the basis that the records provided predated his appeal and his request was for records that post-dated his appeal to the Departments. In its internal review decision dated 22 April 2021, the Department varied its original decision. It released two records it had located relating to the applicant-™s superannuation appeal. It said there were no other records relating to his appeal dated between 17 August 2020 and February 2021 (the date of the request). On 18 May 2021, the applicant applied to this Office for a review of the Department-™s decision.
During the course of the review, the Department made a number of submissions to this Office wherein it provided details of the searches undertaken in an effort to locate relevant records and of its reasons for concluding that no further relevant records exist or could be found. The Investigating Officer provided the applicant with those details and she invited him to make a further submission on the matter. The applicant made further submissions.
This Office engaged in further correspondence with the Department regarding records identified by the applicant that he had received on foot of his request to DPER, but had not received from the Department, despite the records containing correspondence involving both Departments. Additional records were subsequently located and released to the applicant in the course of the review. He was invited to make any further submissions he wished in relation to the review. No further submissions have been received to date.
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 the Department as set out above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
The Department-™s position is that it has, at this stage, released all relevant records coming within the scope of the applicant-™s request. This is, in essence, a refusal under section 15(1)(a) of the Act to grant access to any further relevant records, on the ground that no further relevant records exist or can be found.
The scope of this review is therefore concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further records apart from those already released regarding the applicant-™s submission to the Departments and the subsequent handling of it, on the ground that no further relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a) of the Act 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.
As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
In summary, the Department said that an email was sent to each member of the HR Unit in the Department to check through their emails and saved files for any information relevant to the applicant-™s FOI request. It said that the Department-™s role in the IDR appeal meant that all the information was contained within the HR Unit and it felt there was no need to go to any other Division/Team. As staff were working remotely, it said that all information created had been electronic and this information is accessed electronically either saved on the system or in emails. When an appeal has been accepted, the Department said it prepares the case, using the information sent by the Pension Scheme member and sends it to the Appeals Officer in DPER where a decision is made on the appeal. It said it also requests a copy of the final decision to be sent to it. It said that at the time of the applicant-™s request the case had not yet been prepared and no records had been created.
In his correspondence with this Office, the applicant contended that his appeal would have had to be allocated to a member of staff in the HR section and a record of the transfer from the Minister's office to the HR section should exist.
In response, the Department said it has an eCorrespondence system that the Minister-™s office uses to assign any representation made to the Minister to the relevant division. It said that a notification would be sent via email by the system to the person the case was being assigned to, but it was unable to locate a notification record. The Department provided a screenshot of the eCorrespondence system both to this Office and to the applicant, which demonstrated the steps taken by the Department in relation to the applicant-™s IDR appeal. It said that it had not initially provided this to the applicant as it was of the view that the screenshot was a -˜new-™ record and was not within the scope of the request. As the Department released this record to the applicant, I do not need to address this matter further.
The Department said that only the direct correspondence to the Minister would be uploaded to the eCorrespondence system. It said that once the case was moved to HR they would have taken the case from there and would not upload further records to that system.
In the circumstances, and having considered the details of the searches undertaken by the Department, its explanation as to why no further records could be found, and in the absence of further supporting evidence to suggest that additional relevant records should exist, I am satisfied that the Department has, at this stage, taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the ground that no further 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 FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the Act, to further records regarding the applicant-™s submission to the Departments and the subsequent handling of it, on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
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
