Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records of all correspondence between the Department and Transgender Equality Network Ireland (TENI) over the last five years and any scientific or medical records held by the Department regarding gender transitioning

21 December 2022

Background

In a request dated 12 July 2022, the applicant sought access to records of all correspondence between the Department and TENI over the last five years, to include especially: input into strategic documents, requests for legislative change (especially around hate speech/social media discussions), funding requests, details of one to one meetings with Department officials and/or the Minister and any conflict of interest declarations by staff in relation to dealing with TENI. The applicant also sought a copy of any scientific or medical record held by the Department that -�proves conclusively that gender -�transitioning-� is possible-�.

On 2 August 2022, the Department issued a decision stating that the request spanned two divisions: the Transparency Criminal Contents and Events Division and the Criminal Justice Legislation Division. The decision maker in the Transparency Division refused the request under section 15(1)(a) of the Act on the basis that no records could be found. The Criminal Legislation Division granted access to one record concerning a launch event relating to a public consultation report on hate speech and hate crime legislation in part. It redacted the name of an email recipient under section 37 of the Act. The Department also outlined details of the searches it had conducted.

On 10 August 2022, the applicant requested an internal review and provided the Department with screenshots relating to TENI fromlobbying.ie. These screenshots indicated that TENI had met with a Senator regarding the public policy area of Justice and Equality during the relevant time period. On 9 September 2022, the Department affirmed its original decision and provided the applicant with details of further searches it had undertaken to locate the records sought. On 5 October 2022, the applicant applied to this Office for a review of the Department-�s decision.

During the course of this review, the Department provided a detailed explanation of the searches it undertook in order to locate records relating to the applicant-�s request. This Office provided the applicant with details of the Department-�s submission and invited her to comment on the matter. While the applicant made no further submissions, she indicated that she wished this review to proceed to a 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 submissions made by the Department and by the applicant. I have also had regard to the correspondence between the applicant and the Department, and correspondence between the applicant, the Department and this Office. 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 refusing access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the ground that further relevant records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters                                                                        

It is important to note as a preliminary matter that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant-�s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not applicable in this case).

Analysis and Findings

Section 15(1)(a)

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 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.

During the review, the Investigating Officer informed the applicant of the details provided by the Department of the searches it undertook in an effort to locate relevant records and of its explanation as to why no records could be found. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.

The Department stated that records of the type requested by the applicant are held on Lotus notes databases or in paper files (records from the mid 1990-�s to 2019), or on its eDocs electronic storage system (from 2019 to present). The Department also listed the various Divisions it would expect to hold relevant records which were searched. It also outlined the keyword used for electronic and hardcopy searches in this case.

The Department stated that upon receipt of the applicant-�s internal review request and screenshot it carried out additional searches in the Minister-�s Office for relevant records. It said that this included searches of the Minister-�s Office database, diary and diary inbox. The Department also stated that further searches were carried out on relevant individuals-� emails inboxes. It further stated that it re-searched all digital folders and files for any invitations issued to the Minister to speak at related events or report launches. Its position is that no additional records were located during these searches.

In relation to the single record located and released in part, the Department acknowledged that the wording of the email appeared to indicate that TENI had provided contributions to the public consultation. However, in response to queries from this Office, it stated that this was a standard or template message, and that it had no records of TENI providing contributions or submissions in relation to the public consultation on hate speech legislation.

The applicant had queried the keywords used by the Department in its searches at internal review stage, which included racism and xenophobia. Her position was that these matters did not relate to transgender issues. In its submissions to this Office, the Department stated that the -�topics of gender, transgenderism, racism and xenophobia were linked through the topic of hate crime and hate speech-�. It also stated that it considered that a relevant record may have been mis-filed in hardcopy files relating to racism and xenophobia. It said that accordingly, all paper files relating to racism and xenophobia were identified and manually searched to address this possibility.

In relation to the applicant-�s request for records relating to funding, the Department stated that it issued a call for funding requests in 2020, and that applications were made for funding by several LGBTQIA+ organisations. However, it also stated that responsibility for these records was assumed by the Department of Children, Equality, Disability, Integration and Youth (DCEDIY) as part of the transfer of the Equality function to its remit in October 2020. The Department-�s position essentially is that it has not been able to confirm whether a funding request was made by TENI, as these records are held by DCEDIY. I should state that it is, of course, open to the applicant to make a separate FOI request to DCEDIY should she wish.

Regarding the applicant-�s request for records of one-to-one meetings with Department officials and/or the Minister, the Department stated that none of the relevant individuals consulted as part of the search were aware of any official meetings between the Department and TENI, and that it had not been able to locate any records which indicate that any such meeting took place. Lastly, regarding the applicant-�s request for scientific and medical records held by the Department, it stated that it does not hold scientific or medical records regarding the subject matter of the records requested.

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 take all reasonable steps to locate relevant records. Furthermore, public bodies are not required to search indefinitely for records in response to an FOI request. This Office may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, 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. Rather, the question I must consider in this case is whether the Department has taken all reasonable steps to ascertain the whereabouts of records relating to the applicant-�s request.

Having regard to the extensive search details provided by the Department, which outline multiple searches undertaken on both electronic and hardcopy files using pertinent and related keywords, consultations with relevant individuals and the examination of records from multiple internal Divisions, I am satisfied that the Department has taken all reasonable steps in to locate the records sought in this case. I also note that the applicant made no further arguments that additional records should exist having been provided with the Department-�s search details.

Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to further records on the ground that no additional records relating to the applicant-�s request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision to refuse access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

Sandra Murdiff
Investigator