Whether the Department was justified in its decision to refuse access, under section 15(1)(a) of the Act, to records held relating to a specified 2021 WRC determination on the ground that it holds no relevant records

2 November 2022

Background

On 18 June 2022, the applicant submitted a request to the Department for records that were created following a determination issued by the Workplace Relations Commission (WRC) on a specified case concerning the Revenue Commissioners in 2021. The case concerned a complainant's challenge to her compulsory retirement age of 65.

As the Department failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 3 August 2022. As the Department also failed to issue its internal review decision within the statutory time-frame, the applicant sought a review by this Office of the refusal of his request. Subsequently, following correspondence with this Office, the Department informed the applicant that it decided to refuse the request under section 15(1)(a) of the Act, on the ground that the records sought do not exist. It said it does not actively monitor WRC cases and suggested that any records related to the case directly would be held by the WRC and/or the Revenue Commissioners.

The applicant applied to this Office for a review of the Department-�s decision. During the course of the review, the investigating officer provided the applicant with details of the Department-�s submissions wherein it outlined searches undertaken to locate records and provided its reasons for concluding that no records existed within the Department relating to the applicant-�s request. The applicant was invited 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 the applicant and the Department to this Office. I have also had regard to the correspondence from the applicant and the Department as noted above.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to refuse access, under section 15(1)(a) of the Act, to the records sought relating to a specified 2021 WRC determination on the ground that it holds no relevant records.

Preliminary Matters

During the course of the review, the applicant expressed concerns about the manner in which the Department handled his request. Specifically, he said he understood that when an FOI body says it has no records but believes another body has relevant records it ought to transfer the request. He noted that -�Despite [the Department] stating that Revenue and Finance had records no transfer was made-�.

Section 12(3) of the FOI Act provides that where an FOI body receives a request for records that it does not hold but, to its knowledge, are held by one or more other FOI bodies, it shall, within two weeks of receipt of the request, transfer the request to that one of the other FOI bodies it considers most appropriate and inform the applicant of having done so.

In this case, however, I understand that the Department confirmed with the applicant on 21 June 2022 that its searches would be only for records held by the Department. In its submission to this Office, the Department said the applicant informed it of his presumption that the Department would indeed hold records on the case, as it was an equality matter. In circumstances where the Department understood that request as being one for records that were specifically held by the Department given its functions and responsibilities, I do not believe that it ought to have considered transferring the request in this case.

Nevertheless, I would add that it was very disappointing to note that the Department failed to issue either a first instance decision or an internal review decision within the time-frames specified in the Act. I expect the Department to review its FOI processes with a view to ensuring that, in future, decisions issue in a timely manner in accordance with the provisions of the Act.

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 the 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 the 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 the practices relate to the records in question.

In its submissions to this Office, the Department said its Equality and Gender Equality Section was instructed to carry out searches for any relevant records. That section confirmed that no records could be found having checked its records from 2021 and to date in 2022 on eDocs, eCorrespondence and the submissions to the recent public consultation on the review of the equality legislation. The Department added that having discussed the matter with the section, it concluded that the Department does not regularly create records in relation to WRC cases.

As I have outlined above, the Investigating Officer notified the applicant of the details of the Department-�s submissions and invited him to submit any further comments he might have on the matter. In his response, while the applicant expressed concerns about the Department-�s handling of his request, he provided no substantive comments on the searches undertaken by the Department, nor did he provide any further evidence to suggest that further relevant searches might be warranted.

It is important to note that the FOI Act is not concerned with access to records that a requester believes ought to exist. Rather, the question I must consider in this case is whether the Department has taken all reasonable steps to ascertain the whereabouts of the records sought. Having regard to the details of the Department-�s submission and to its explanation as to why it considers that the records sought do not exist, I am satisfied that it has. Accordingly, I find that it was justified in refusing the request under section 15(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision to refuse, under section 15(1)(a) of the Act, the applicant-�s request for records held relating to a specified WRC determination on the ground that it holds no relevant records.

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