Whether CIB was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records sought by the applicant on the basis that no further records exist or can be found

18 November 2022

Background

This case has its background in a previous decision I made on 21 October 2021 in case OIC-103051, wherein I directed the CIB to undertake a fresh decision on certain parts of the applicant-�s request for records on the ground that it had not taken all reasonable steps to ascertain the whereabouts of all records coming within the scope of the request. In essence, I found that the CIB should have contacted a specified Money Advice and Budgeting Service (the company), to ascertain whether it held relevant records as a service provider to the CIB.

At relevant parts, the original request was for:

1. All emails or records concerning a press query from a named newspaper on the company dated September 2021. The applicant said that several of those emails occurred between 9 September 2021 and 13 September 2021. He added that any emails or correspondence within the company should be included.

2. Any other emails or recording concerning a programme on a named radio station on the company funding broadcast in October 2019, again to include emails or records within the company.

Following my decision, the CIB issued a fresh decision on 19 November 2021 wherein it said it had decided to part grant the request. On 13 December 2021, the applicant sought an internal review of the CIB-�s decision. Among other things, he noted that the decision made no mention of any consultation with the company to determine if other relevant records exist.

On 6 January 2022, the CIB confirmed that it had contacted the company when processing the request afresh and that the company said it held no relevant records. It refused access to any further relevant records under section 15(1)(a) of the Act. On 4 July 2022, the applicant applied to this Office for a review of the CIB-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the CIB-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make a further submission on the matter, which he duly did.

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 CIB in support of its decision and to the applicant-�s communications with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

In his correspondence with the CIB and with this Office, the applicant raised concerns about the record he had received in respect of part 3 of his request, which was for access to a 2019 Action Plan developed by the board of the company. However, as I have outlined above, in my decision of 21 October 2021, I directed the CIB to undertake a fresh decision making process in respect of any records in the possession of the company relating to parts 1 and 2 of the applicant-�s request only. This review will not, therefore, consider any matters relating to part 3 of the request.

Accordingly, this review is concerned solely with whether the CIB was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of those parts of the applicant-�s request as set out above.

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 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, CIB provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further 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.

In summary, the CIB said it requested the company to perform a search for any additional records relating to the applicant-�s request. It said that the company confirmed that no further records were held. It said the named radio station email, referred to in the applicant-�s request, did not include the company in the email chain in any way, as it was an email that was internal to the CIB, originating from a media scan generated to the CIB. It said it was not expected that the named company held any records relating to this. It said it contacted the company regional manager to confirm that no records were held by the company related to the named radio station.

In further communications with this Office, CIB provided details of the searches carried out by the company for relevant records, along with the company-�s data retention policy. The Company communicated the following to CIB:

• Relevant company staff carried out a search within their emails, digital files and folders as well as physical files in an attempt to locate further relevant records.
• Searches were also carried out in the company-�s offices located in Ennis and Waterford.
• As no documents are stored off-site, no such searches were required.
• There were no additional documents retained by the company other than those that were furnished to the applicant.

As outlined above, the search details submitted by CIB were provided to the applicant by the Investigating Officer. In response, the applicant commented primarily on the record he had received in respect of part 3 of his request. On the matter of the searches undertaken, he asked if the CIB-�s IT department assisted the company in the search for records, on the ground that the company does not have an independent IT department. On this point, it is not clear to me if he believes that such assistance would be required in relation to his arguments concerning the existence of other records coming within the scope of part 3 of his request. If this is the case, I have indicated above that the CIB-�s response to part 3 of the request does not form part of this review. Moreover, it seems to me that having regard to the nature of the records sought at parts 1 ands 2, the searches undertaken would reasonably be expected to uncover relevant records if they existed.

It is important to note that the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request or to continue searching indefinitely for records that cannot be found. The question I must considered is whether CIB has taken all reasonable steps to ascertain the whereabouts of the records sought. Having regards to the details of the searches undertaken and of its explanation as to why no further relevant records exist, I am satisfied that it has. Accordingly, I find that CIB was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the grounds 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 CIB to refuse access, under section 15(1)(a) of the FOI Act, to further relevant records coming within the scope of parts 1 and 2 of the applicant-�s request on the grounds that no further relevant records exist or can 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