Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the time the applicant's late father spent in a named Industrial School and/or his time in any other industrial school(s) during the period 1916 -“ 1924
30 June 2022
Background
In a request dated 3 February 2021, the applicant sought access to records relating to the time his late father spent in a named Industrial School and/or his time in any other industrial school(s) during the period 1916 -“ 1924. In a decision dated 3 March 2021, the Department refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. It provided some background information on the types of records held in relation to former Industrial/Reformatory Schools and why the records held in general were very limited. The applicant sought an internal review of that decision on 5 March 2021, following which the Department affirmed its refusal of the request. It noted in particular that it would only hold records if a child was committed to a School via Court Order, and even then that it had had few records pre-dating the 1940s.
The applicant wrote to the Department again on 16 June 2021, in which he provided a copy of a record he had acquired from the National Archives that detailed the committal of his late father to a named Industrial School via a Police/Court Order in 1917, and he asked the Department to conduct further searches for relevant records. On 24 June 2021, the Department informed the applicant that further searches uncovered no relevant records. On 11 September 2021, the applicant applied to this Office for a review of the Department's decision.
During the course of the review, the Investigating Officer provided the applicant with details of the Department's submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records exist and she invited the applicant to make a further submission on the matter. The applicant made further submissions.
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 referred to above and to the submissions made by both parties in this case. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any relevant records relating to the time the applicant's late father spent in a named Industrial School and/or his time in any other industrial school(s) during the period 1916 -“ 1924.
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. Our 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 their 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.
As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no 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.
The applicant contended that the Department should hold some records from the relevant period, as he had been able to acquire records from the Christian Brothers via an Archivist in relation to other named Industrial Schools as well as the one listed in his request. He said it did not make sense that there would be well-kept records for one Industrial School and not the other when both were managed by the Christian Brothers, and he argued that the Department should hold the same records due to the arrangements in place at the time.
In response to the applicant's contentions, the Department said its records are completely separate to the records held by the Christian Brothers, who were in charge of running certain Industrial Schools during the relevant period. It said that the existence of records held by the Christian Brothers in relation to an individual in no way indicates whether or not records are held by the Department in relation to the individual in question.
The Department stated that the vast majority of all records held in the Department archive relate to a period from the late 1930s onwards. It said that, unfortunately, there are very few such records that exist in relation to the time prior to the late 1930s, and the most likely source of obtaining personal records of former residents from the period of late 1930s and earlier would be the individual School Registers, where such registers exist.
The Department stated that it maintains records on the former residents of some 59 Industrial & Reformatory schools who were placed there by way of a Court Hearing on this system. It stated that many children were placed in the schools by alternative means, e.g. Health Board referrals, voluntary placement, etc. and, in such instances, the Department generally does not hold any records.
It outlined extensive searches that took place in its electronic systems, and as outlined above the entirety of the search details were provided to the applicant by this Office. In response, the applicant forwarded a response he received from the Archivist who works with the Christian Brothers. He said that in the Archivist's view;
"All Industrial Schools were required to keep records for residents of the Industrial Schools and they did so right from the beginning. [The applicant will have seen] the copies of the register pages from [a named Industrial School]. The Department of Education had their own set of identical registers with the register numbers for each resident corresponding with the number on the school's registers. The names and details of newly admitted residents were recorded in both the registers in the school and in the registers in the Department. The number at the top of the page made it easy to reference a particular resident in any correspondence or on other forms submitted by the school to the Department.
Registers were used and details were entered into them in [named Industrial School that is the subject of this request] from the year it opened in 1896 onwards. There was a recordkeeping regime in [the named Industrial School] identical to that for all of the other Industrial Schools throughout the country which was subject to inspection by the Department of Education."
The applicant queried whether the Department knew what had happened to the records pre-dating the earliest entries it held in relation to the named Industrial School register.
The Investigating Officer forwarded this query to the Department. In response, it said that on foot of the Commission to Inquire into Child Abuse, a legal professional conducted a Report for Discovery for the Department of Education and Science dealing with the issue of missing Department files.
It said that the relevant extract of the Report states:
The missing files were, it appears destroyed between 1960 and 1976. I have, on the evidence produced to me, come to the conclusion that they were destroyed firstly, because no one thought that they would ever be of relevance, secondly because of poor storage conditions and thirdly because it was then regarded as part of an "efficiency drive" which would tidy up old documents.
The Department further stated that the files referred to above were not catalogued so it is not in a position to confirm that they include records from the named Industrial School dating between 1896 and 1942, however, the earliest records it currently holds for the named Industrial School are from 1942.
The applicant was given an opportunity to comment on the above position, and while he expressed doubt as to the veracity of the reasons for the destruction of the records, he did not present any evidence to suggest records may still exist or that would suggest that additional searches might be warranted within the Department.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
In the circumstances, and having considered the details of the searches undertaken by the Department and of its explanation as to why no records could be found, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for records relating to the time spent by his late father in a named Industrial School and/or his time in any other industrial school(s) on the ground that no 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 records relating to the time the applicant's late father spent in a named Industrial School and/or his time in any other industrial school(s) during the period 1916 -“ 1924 on the basis that no 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
