Whether Irish Rail was justified in refusing access to additional records relating to works done on a bridge OBC438 from 2017 -“ 2019 and works done on the fencing between the public car park under OBC438 and the railway line (1/2 km of works) on the ground that no further relevant records exist or can be found

26 October 2022

Background

On 8 June 2021, the applicant sought a copy of all documentation held by Irish Rail relating to works done on a bridge OBC438 from 2017 -“ 2019, to include tendering and works documentation and all/any documents following on from this repair work, and a copy of all documentation relating to works done on the fencing between the public car park under OBC438 and the railway line (1/2 km of works) to include tendering and works documentation and all/any documents following on from this repair work.

In its decision dated 20 July 2021, Irish Rail part-granted the request. It granted access to nine records in full and part-granted access to eleven records, with certain information redacted under section 37 of the FOI Act, which is concerned with the protection of third party personal information. The applicant sought an internal review on the basis that he had not received complete disclosure in relation to the works done on OBC438. Irish Rail issued its internal review decision on 19 November 2021, in which it varied its original decision. It released the information previously redacted in some of the records. On 16 February 2022, the applicant sought a review by this Office of Irish Rail-™s decision.

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 Irish Rail 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 applicant sought a review of Irish Rail-™s decision based on his view that Irish Rail had not released all relevant records. Accordingly, the scope of this review is concerned solely with whether Irish Rail was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records falling within the scope of the applicant-™s request on the ground that no other 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.

In the course of correspondence with this Office during the review, Irish Rail subsequently located further relevant records, and released these to the applicant with redactions. It also provided a copy of the schedule of the records to this Office. It said that the tender reference for painting works conducted on OBC438 had been omitted from the initial search list given to its Procurement Section in error.

In the circumstances, I simply cannot find that Irish Rail had undertaken all reasonable steps to locate relevant records when processing the FOI request. As such, I find that Irish Rail was not justified in refusing to grant access to further relevant records under section 15(1)(a) of the FOI Act. However, I do not consider it appropriate to simply direct the release in full of the records that have since been located, in circumstances where Irish Rail argues that those records or parts of those records are exempt from release, and where the exemptions cited serve to protect third party interests.

On the other hand, it is not appropriate that this Office should be a first instance decision maker to determine what information, if any, qualifies 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 Irish Rail to refuse the request under section 15(1)(a) of the Act. The effect of this is that Irish Rail 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 he is not satisfied with Irish Rail-™s decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul Irish Rail-™s decision to refuse access to any further records relevant to the applicant-™s request and direct it 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