Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to an investigation of a TB outbreak on the ground that no relevant records exist or can be found

1 March 2022

Background

The applicant in this case suffered a TB outbreak in his cattle herd in 2011, on foot of which a number of calves were disposed of on his farm. The applicant raised issues with the Department surrounding the disposal of the calves and he attended meetings with Department officials, during which he said he was informed that the HSE would be required to investigate a related matter.

The applicant subsequently made a number of FOI requests to the Department for records relating to the matter. On 2 April 2021, he submitted a follow-up request for documents of the information the HSE received from the Department and the results of the HSE investigation. In a decision dated 21 May 2021, the Department refused the request under section 15(1)(a) of the Act on the ground that no relevant records were located following extensive searches. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 22 October 2021, the applicant applied to this Office for a review of the Department's decision.

During the course of the review, the Department confirmed that had two sets of minutes for two meetings between the applicant and its officials in 2017 and 2019, but did not provide them to the applicant on foot of his request as it was of the view that they were not relevant to the request as no reference to any HSE investigation was noted in the minutes. Nevertheless, the Department released copies of the minutes to the applicant during the review.

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 Department and the applicant as described above and to the correspondence between this Office and both parties on the matter.

Scope of Review

In his application for review to this Office, the applicant provided a very detailed account of his engagements with the Department and of the Department's actions in relation to the TB outbreak. During the course of the review, he also raised a large number of issues about those events that are not capable of consideration by this Office. Our remit does not extend to the examination or investigation of complaints about the administrative actions of the Department, its staff, or any other person or entity, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the Act.

Accordingly, this review is concerned solely with whether the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for records relating to a HSE investigation connected with the TB outbreak on the ground that no relevant records exist or can be found.

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.

As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate any records and provided reasons for concluding that no relevant records exist.  As this Office has already provided the applicant with those details, I do not propose to repeat those details in full here. However, I confirm that I have had regard to them for the purpose of this review.

In correspondence with this Office, the applicant said he had a meeting in 2017 with a number of Department officials. He said he informed those present about what had occurred in his farmyard in December 2011 and about a consequential potential TB outbreak, and he alleged that one of the individuals informed him that he would notify the HSE to investigate the matter. He claimed he never received any follow-up with this investigation until he questioned it at another meeting on 20 November 2019 and that an official informed him that came to nothing.

In its submissions, the Department said the official in question recalled that he contacted the HSE verbally, that there was no record of an outbreak and that the matter was deemed closed. It said it is not in a position to instruct the HSE to undertake any investigation. It said the official informed the HSE of the details as outlined by the applicant and that any follow up investigation would be a matter for the HSE. It said no records were provided to the HSE that might fall within the scope of the applicant's request.

The Department added that it had communicated with all relevant officials and had conducted an extensive search while there are minutes of the meeting of 20 November 2019, they contain no reference to an investigation. It said its understanding from verbal communication with the HSE is that there was no follow up investigation as the HSE had not been notified by relevant health authorities of an outbreak of TB in the area identified by he applicant. It suggested that any queries regarding an investigation should be forwarded to the HSE as the Department has no authority in the area of HSE investigations. Nevertheless, it said it is satisfied that the relevant official verbally contacted HSE and the HSE's decision was that no investigation was necessary. It again asserted that no documents were sent to HSE by the Department.

On the matter of the searches conducted, the Department said it carried out electronic searches by herd number and name and said there were no other locations/areas where such records might be held. It said all officers who attended the meetings were asked by email to provide details of the information being sought i.e. "Full documents of the information the HSE received from the Department and the results of the HSE investigation". The Department confirmed that each of the relevant officers who attended the meeting replied to the email indicating they had no information or record of contacting the HSE after the meeting.

In response to the Department's submissions, the applicant expressed concerns about the absence of any reference to the investigation in the meeting minutes. However, he presented no other evidence to suggest that the records sought ever existed, i.e. documents of the information the HSE received from the Department and the results of the HSE investigation. Indeed, I note that in his original request of 2 April 2021 to the Department, he said that he had contacted the HSE and that it did not have a file regarding any such investigation. It seems to me that this supports the Department's submission that it did not send documents to the HSE and that it received no notification of the outcome of any such investigation. Moreover, the fact that the minutes of the meetings contained no reference to an investigation in circumstances where both parties accept that it was, at least, referenced is not a matter for consideration by this Office.

In the circumstances, having regard to the Department's description of the searches undertaken and its explanation as to why no relevant records could be found, I am satisfied that the Department has carried out all reasonable steps in an effort to locate records sought in this case.  I find, therefore, that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for relevant records on the ground that no such records exist or can be found.

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 documents of the information the HSE received from the Department and the results of the HSE investigation on the ground that no such 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