Whether IHREC was justified in refusing access, under section 15(1)(a) of the FOI Act, to records regarding how the equality legislation should be applied where transmen or transwomen are being excluded from services provided, on the ground that no relevant records could be found

OIC-116201-Y3G1N1

Background

In a request dated 26 May 2021, an anonymous applicant emailed a request to IHREC for "all correspondences, to and from the IHREC (and to include internal emails/memos/minutes discussing same) regarding how the equality legislation should be applied where service providers are seeking to provide services for women while excluding transwomen from that service (or seeking to provide services for men while excluding transmen from that service)".

On 9 June 2021, IHREC refused the request under section 15(1)(a) of the Act on the ground that no relevant records could be found. The applicant sought an internal review of that decision, following which IHREC affirmed its refusal of the request. On 22 November 2021, the applicant sought a review of IHREC's decision. Subsequently, the applicant provided links to comments made on an online forum as evidence of the existence of relevant records.

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 both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether IHREC was justified in refusing access, under section 15(1)(a) of the Act, to any records coming within the scope of the applicant's request as set out above.

Analysis and Findings

Section 15(1)(a) of the FOI 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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of the review, when inviting submissions on the matter, the Investigating Officer brought to the attention of IHREC the links to the comments made on the online forum that the applicant had provided to this Office. In its response, IHREC confirmed that with the assistance of the additional information provided, it had located a number records related to the applicant's request. Following further correspondence between this Office and both parties, IHREC identified further additional relevant records. While it released a number of records to the applicant, it said it had decided to withhold certain records under various provisions of the FOI Act.

As indicated, above, this review is concerned with whether IHREC had taken all reasonable steps to locate relevant records. Having regard to the fact that it has since located a number of records, it is clear to me that it had not. However, I do not consider it appropriate to simply direct the release of the records that have since been located, in circumstances where IHREC argues that some of the records are exempt from release. On the other hand, it is not appropriate that this Office should be a first instance decision maker to determine what information, if any, might qualify for exemption.

Instead, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of IHREC 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 necessary.

For the benefit of the applicant, I would note that had the information that was provided to this Office in the course of the review been provided to IHREC when an internal review of the original decision was sought, it may have negated the need to apply to this Office for a review or, at the very least, have resulted in a more timely outcome. It is to the benefit of requesters to provide relevant information that might allow an FOI body to more readily identify the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul IHREC's decision to refuse, under section 15(1)(a) of the FOI Act, the applicant's request. I direct IHREC 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

24 February 2022