Whether the Department was justified in refusing access to any further records relating to the possible transfer of certain statutory powers under section 53 of the Electricity Supply Act 1927 to EirGrid on the basis that they do not exist or cannot be found

07 July 2022

Background

This case has its background in discussions which took place in the Department in 2010-11 in relation to the possible transfer of wayleave powers under section 53 of the Electricity Supply Act 1927 to EirGrid.  It would appear from the records that while such a course of action was considered, it ultimately did not come about. 

In a request dated 23 August 2021, the applicant made a four-part request seeking access to records relating to meetings and other correspondence between the Department and EirGrid and/or the ESB relating to the transfer of statutory powers under section 53 to EirGrid as well as records relating to the decision taken by the Department in relation to the matter. Specifically, he sought;

1. Records of a meeting between the Department and Eirgrid plc. on 19 October 2010 including minutes of the meeting and any records exchanged at the meeting.
2. Records of correspondence between the Department and Eirgrid plc. in relation to Eirgrid's letter dated 16 November 2010 both before and after the Eirgrid letter.
3. Records of correspondence between the Department and the Electricity Supply Board/ESB Networks and/or Eirgrid in relation to the transfer of S.53 of the 1927 Electricity Act to Eirgrid plc.
4. Records on the decision of the Department to transfer/not to transfer the powers of S.53 of the 1927 Electricity Act to Eirgrid plc. (referred to in the last paragraph of the letter) and correspondence to the ESB and/or Eirgrid plc. in relation to same.

On 20 September 2021, the Department issued its decision wherein it identified nine records as falling within the scope of the request. It granted access to two records in full and part-granted access to seven records, with certain information redacted under section 37 of the FOI Act, which is concerned with the protection of third party personal information.

On 15 October 2021, the applicant sought an internal review of that decision. He argued that the Department incorrectly redacted certain information and that further relevant records should exist. On 5 November 2021, the Department varied its original decision. It granted access to some additional information that had been redacted. It refused access to any additional relevant records on the ground that no further records could be found.

On 6 December 2021, the applicant sought a review by this Office of that decision. He indicated that he required a review of the decision to redact information from the records apart from record 7 and a review of the Department's decision to refuse access to any further 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 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 also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Following contact with this Office, the Department revised its position with regard to the information that had been redacted on the basis of section 37(1).  It released records 4, 6, 7, 8 and 9 in full to the applicant. It also released further information in records 1 and 2. However, it maintained its reliance on section 37 to refuse access to mobile telephone numbers of staff members of ESB and EirGrid in the records.

In addition, the Department's position is that it has released all relevant records coming within the scope of the applicant's request. This is, in essence, a refusal of any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Following receipt of the additional records the applicant contacted this Office to indicate that he was limiting the extent of his appeal to this Office to parts 3 and 4 of his original request. I understand the applicant's submissions to mean that the sole matter I must consider is whether the Department was justified in refusing access to any further records falling within the scope of those parts of his request on the basis of section 15(1)(a).

The scope of this review is therefore concerned with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any other records coming within the scope of parts 3 and 4 of the applicant's request apart from those already identified during the processing of the request, on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a)

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.

The question I must consider is whether the Department was justified in refusing access to any further records falling within parts 3 and 4 of the applicant's request on the basis that they do not exist or cannot be found.

During the review process, this Office's Investigator asked the Department about the steps it had taken to search for records within the scope of the review and its relevant record-management practices. The Department's response to these queries was provided to the applicant and is set out in summary here. It includes a statement of the offices to which the FOI request was circulated, the searching mechanisms utilised, and the types of locations and facilities of which searches were carried out for relevant records.   The applicant was provided with an opportunity to comment on these searches but did not avail of this opportunity.

By way of background, the Department referred to its Data Retention Policy, the purpose of which is to provide general guidance on the length of time that it is appropriate to retain data collected and processed by the Department. Under this Policy, each Division must draw up and regularly review a retention schedule. The Department indicated that the Corporate Governance Division (CGD) came into existence in 2015 and has a retention schedule in place. It indicated that the Division has not archived, destroyed or deleted any files apart from those that fall under the GDPR such as curriculum vitae or letters and warrants of appointment for expired State Board members.

The Department further indicated that the majority of the files in the CGD are electronic, although some paper records are held.  It said the applicant's request was split between the Electricity Policy Division and the CGD and that the decision-maker in the latter Division took the lead on the matter and coordinated input from the Policy Division. 

The Department indicated that the relevant shared drive was searched for electronic copies of any relevant records. It indicated that electronic files relating to EirGrid, ESB and section 53 powers were searched and it provided details of the keywords which were used for these searches. The Department also indicated that the CGD office was searched for any related paper files and that the CGD had not archived any paper files. It also provided a copy of an email which had been sent to a number of Departmental officials in the Electricity Policy Division asking them to search for records relevant to the request. While the majority of officials indicated that they had no further records relevant to the request, one official identified relevant records and they were included in the records identified. In addition, the Department indicated that the Policy Division confirmed that no related paper files were archived. 

The Investigator also sought details from the Department with respect to a number of specific records which the applicant believes exist and had not been identified. First, with regard to any minutes of a meeting which took place between the Department and EirGrid on 19 October 2020 and any records exchanged at this meeting; the Department indicated that searches were conducted and no records were identified in relation to that meeting. 

Secondly, with regard to the reference in record 4 to a letter of 9 June 2010 and an email of 1 September 2010 relating to the decision around the possible transfer of the section 53 powers under the Electricity Act 1927 to EirGrid, the Department indicated that such records could not be located following the searches referred to above. Finally, with regard to the applicant's comments relating to the existence of records relating to the decision around the possible transfer of the section 53 powers under the Electricity Act 1927 to Eirgrid, the Department once again indicated that following the searches outlined above no such records were identified.

In summary, the Department stated that a thorough search for records was conducted and that no records, beyond those identified, could be found. The Investigator in this case provided details of the searches undertaken by the Department to the applicant and invited any further comment in relation to the records which he believed existed.  The applicant did not avail of this opportunity to comment further.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, while the applicant is of the view that further records should exist, no specific evidence has been submitted to suggest that further specific searches are warranted in this case.

Taking into account the search details provided by the Department, its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Department has conducted reasonable searches to locate records relevant to parts 3 and 4 of the applicant's request.  In particular, I am satisfied that the searches detailed in the Department's submission, including the key words chosen for the electronic searches, are reasonable steps for the purposes of section 15(1)(a) in this case and I find accordingly.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to any further records relevant to parts 3 and 4 of the applicant's request on the basis that they do not exist or cannot be found.   

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