Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further certain Forest Service records on the basis that they do not exist or cannot be found 

27 March 2023

Background

The Department-�s Forest Service is responsible for the development of forestry within Ireland. The applicant is a registered forester. On 2 April 2021, he made an FOI request for:

• all records regarding seven different forestry applications that his company had made to the Forest Service (-�the forestry application records-�); and
• records containing details of the Forest Service-�s inspection policy, referral policy, administration/referral policy regarding Native Woodland Conservation Scheme (NWCS) Applications, and its complaints procedures (-�the policy records-�).

The Department-�s initial decision-making on the request was the subject of a decision of this Office of 8 November 2021 in Case No.OIC-111164-H2Y4C6. The decision noted how the Department-�s submissions in that case lacked sufficient information about matters such as its records management practices and policies. The Senior Investigator said, in particular, -�that [the Department] has not provided sufficient information about the steps taken to search for relevant records -�-�, noting that the Department had found additional records during this review. He said that he was therefore not in a position to find that the Department had taken all reasonable steps to ascertain the whereabouts of relevant records. The Senior Investigator annulled the Department-�s decision and directed it to carry out a fresh decision making process on the request.

The Department-�s fresh decision issued on 17 December 2021. The decision did not say how many records it covered, but said that they were described in an attached schedule. The Department relied on section 37 of the FOI Act (personal information) regarding unspecified redactions.

The applicant sought an internal review on 11 January 2022, on the basis that there were a number of records missing. The Department-�s internal review decision of 16 February 2022 affirmed its decision, saying that there is -�no other relevant material available in addition to that already released-�. Effectively, this is a reliance on section 15(1)(a) of the FOI Act (reasonable searches/records do not exist).

On 21 February 2022, the applicant applied to this Office for a review of the Department-�s decision on the basis that further records should exist.

On 16 May 2022, this Office-�s Investigator invited the Department to provide submissions within two weeks. The Department sought and was given an additional week to respond. However, its submission of 10 June 2022 consisted mainly of a copy of the Investigator-�s letter annotated in red. It did not respond to certain queries because it could not find certain documentation referred to by the Investigator (including this Office-�s previous decision), and asked for them to be supplied by this Office.

Having provided relevant details, the Investigator sought the Department-�s reply to the remaining queries within a week. In light of the age of the request and its history, she said that the Department should also ensure that the rest of its submission was sufficiently detailed. The Department sought a further week-�s extension.

On 4 July 2022, the Senior Investigator issued a notice to the Secretary General under section 45 of the FOI Act, requiring a response. The Secretary General responded on 12 July 2022. Nonetheless, it was necessary for this Office to seek further details and clarifications from the Department in July and August.

In particular, the Department-�s letter to this Office of 3 August 2022 referred to an ongoing -�enhanced search-� and -�further fresh search-�. Its letter of 16 September 2022 said that this search had been completed and material -�passed on-� to the applicant. It also said, further to the Investigator-�s queries on aspects of its previous correspondence, that it was releasing excerpts from the NWCS spreadsheet, screenshots from the ETS for four of the seven forestry applications, and its Standard Operating Procedure (SOP) manual for inspectors.

I have completed my review in accordance with section 22(2) of the FOI Act and I decided to conclude it by way of a formal, binding decision. In carrying out my review, I have taken account of the above exchanges, other correspondence between this Office, the Department and the applicant, and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Department is justified in refusing to release further records covered by the applicant-�s request under section 15(1)(a) of the FOI Act i.e. on the basis that it has carried out reasonable searches for such records, and/or that such records do not exist.

The review does not encompass any records created after receipt of the request of 2 April 2021. Noting the applicant-�s comments to this Office, the review does not extend to records not covered by his request, or to examining whether records should contain further details, or providing him with answers to his questions. While he also wishes to inspect original documents and/or to obtain digital copies, I cannot go beyond the form of access originally requested i.e. hard-copy records.

Preliminary Matters

Before setting out my substantive analysis of this matter, I wish to make a number of preliminary points.

First, I am particularly disappointed to note the Department-�s request to the Investigator for a copy of this Office-�s previous decision. I would have expected its fresh decision making process to have paid careful attention to the Senior Investigator-�s comments and findings.

Scheduling of records

Our previous decision on this request referred the Department to various material on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. This includes a sampleFOI Decision Scheduleand guidance on preparing schedules. Schedules are intended to be an essential reference point, not only for the requester, but for the FOI body when dealing with any subsequent reviews of the matter.

The applicant says the records released at decision stage were not scheduled. They were not numbered, nor were they in any particular order and many records were duplicates. I understand that the original decision covered approximately 410 records. While the attached schedule purports to -�describe each document -�-� and give -�a summary and overview of the decision as a whole-�, it lists one record which is described as -�documents requested for above [FOI request]-�. The Department later told the applicant that this was a -�standard schedule -� issued with all AIEs.-�

It should be noted that the FOI Act does not require the preparation of a schedule and that this Office has no role in requiring the production of schedules, or in reviewing their contents. However, the above mentioned schedule serves no useful purpose. I remind the Department to ensure that its decision makers have regard to the various material on the CPU website, including the FOI Code of Practice, and to produce more informative schedules as a matter of good practice.

While the schedule of the records released in September is reasonably detailed, the applicant says it does not correspond to the released records. While this is not a matter I can review, I would ask the Department to deal with the applicant-�s queries if it has not done so already.

Content of decisions

I have already noted that the Department-�s internal review decision does not cite section 15(1)(a). I remind the Department to ensure that it complies with the FOI Act-�s requirements for the content of decisions. Further to sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various details including:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• appeal rights.

Section 44 investigation

Finally, the applicant outlines his concerns about the Department-�s handling of his forestry applications. My review cannot have regard to these matters. It is also important to note this Office's remit does not extend to taking into account how an FOI body performs its functions generally, when considering individual applications for review, or to investigating complaints, or in obtaining answers to the applicant-�s queries about his applications.

The applicant also complains about the Department-�s handling of his FOI request. A review carried out under section 22 of the FOI Act cannot extend to, or take account of matters, which would more appropriately be dealt with by way of an investigation under section 44 of the FOI Act. This provisioninter aliagives the Commissioner the right to conduct investigations into the practices or procedures of FOI bodies for the purposes of compliance with the FOI Act. I shall take into account the outcome of the two ensuing section 22 reviews when considering whether to conduct an investigation into the Department-�s FOI practices and procedures.

Analysis and Findings

By way of general background, the Department says that it is dealing with a substantial increase in the numbers of FOI and AIE requests in recent months, particularly in relation to Forestry Services. It says that while a dedicated unit was set out up in the Forestry Division to deal with such matters, it has taken staff time to become familiar with the processes and legislation. I am aware of the increase the Department has experienced and I acknowledge the difficulties such a surge in cases can cause when it comes to resourcing.

Section 15(1)(a) -� reasonable searches/records do not exist

Section 15(1)(a) of the FOI Act provides that a request may be refused where the requested record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

The applicant-�s initial correspondence with this Office listed a significant amount of records that he said should have been identified and released, including draft documentation. He said that the Forestry Service blames the Ecology section for delays in his forestry applications but that no Ecology section records were provided, such as from the ETS. He said also that while a small amount of internal communications was released, a significant number of further e-mails and texts should exist given the history and complexity of his various applications. He said that he had not been supplied with any of the requested policy records.

It is important to note that section 15(1)(a) requires an FOI body to carry out reasonable, not exhaustive searches. While the Investigator asked for the Department-�s comment on the applicant-�s list of records, she also made it clear that this Office does not expect any FOI body to account for every actual, or perceived, gap in a set of records. Nonetheless, FOI bodies are required to justify any claim that reasonable searches have been carried out or that records do not exist.

Forestry application records

Details sought and provided

The Investigator invited the Department-�s submission on various matters, including the processing of the relevant forestry applications, the units that would potentially hold records, and the creation, storage, and searches carried out of hard copy and electronic records. She also attached a copy of my Guidance Note on section 15(1)(a) and the related Sample Questions, as guidance for what should go into the submission. I intend to set out only what arose from the Investigator-�s specific request for confirmation that the searches covered records held by staff who deal with the matters the subject of the request.

The Department-�s letter of 10 June 2022 said that, while particular Heads of Division had been asked to search for records, those named by the applicant in his OIC application -�may not all have been contacted-�. It said that it would do so, -�if -� appropriate-�.

The Secretary General-�s letter of 12 July 2022 said that records regarding Ombudsman queries and certain of the forestry applications were found in email accounts of two staff. It said also that 24 officers had been contacted, who would have been expected to search email inboxes and sent boxes, records on the eDocs storage system and in shared drives and databases to which they have access, and filing cabinets and archive boxes. The letter did not comment further on these searches.

The Secretary General-�s letter also referred to further emails and texts that may have existed but which have not been located and which -�are not part of the Department-�s records-�. It said that -�[e]ach staff member is responsible for saving emails that they judge should be added to the Department-�s records, as they will be deleted after 24 months from the Department-�s email system. Not all emails are saved and it is at the discretion of the staff member whether an email is judged to contain information that merits being filed as a record or not.-� The letter does not comment on any policy regarding the retention of text or other messages regarding official business.

On 26 July, the Investigator asked for the criteria used by staff to search their own hardcopy and electronic records. The Department-�s response of 3 August 2022 gave relevant details. However, it also referred to an ongoing -�enhanced search-� or a -�further fresh search-�. It said that each party named by the applicant had been asked to -�confirm what search they have carried out to date and to disclose any further information that they may have discovered, not included in the original response.-� It did not say whether these were the same 24 staff referred to by the Secretary General.

On 16 September, the Department told this Office that the search was complete and records released to the applicant. On the same date, the Department informed the applicant that it was releasing 152 emails, and expressed a belief that -�much of this material has already been provided -�-�.

The Investigator informed the Department of this and the applicant subsequently told this Office that he was given many previously unreleased emails, including 49 emails sent by one particular staff member.

Analysis

The Department-�s submissions are more detailed than they appear to have been in Case No 111164, when this matter was previously reviewed by this Office, albeit that the details were supplied on a disappointingly piecemeal basis over a protracted timescale. However, various aspects remain unclear.

No written comment has been received from the Department on the applicant-�s position regarding the recently released records. This may relate to the lack of detail in its previous schedule(s). In the circumstances, I have no basis to conclude that the Department had previously identified the records concerned. This is a concerning development in relation to an 18-month old request, particularly one that has already been the subject of a review by this Office.

Furthermore, various issues arise in relation to the Department-�s -�enhanced-� or -�further fresh search-�. The Department has neither identified nor explained, for example, why the relevant schedule suggests that it has not found any emails sent to, or received from, at least two people identified by the applicant. The Department has not set out whether the latest searches encompassed other records that may be held by relevant staff (such as hard copy records or electronic records on their personal drives, pc desktops etc.) and if not, why this is the case. The Department has not clarified whether it used the search terms set out in the letter of 3 August, or additional terms. It is not for this Office to unilaterally draw conclusions on such matters.

I understand that the Department believes that it has carried out reasonable searches and has done its best to provide this Office with sufficient details. I also understand that it is willing to address any further queries that this Office may have. However, even if the only issues to be clarified were those set out above, I do not consider that this would be an appropriate course of action, particularly given the level of engagement that has already taken place. As this Office pointed out in our previous decision, the onus is on the Department to satisfy this Office that it is justified in claiming that section 15(1)(a) applies. The Department should have been aware of this requirement in any event, given that it has been subject to FOI since 1998.

In summary, the Department has again not provided sufficient information about the steps taken to search for relevant records and again has located additional records in the course of this review. I have no basis to find that it has taken all reasonable steps to ascertain the whereabouts of relevant records and I find that the Department is not justified its effective reliance on section 15(1)(a) in relation to the forestry applications.

By way of assistance for its fresh decision making, these include how records in the ecology and archaeology sections are stored and were searched for, and why the ETS holds no records for three of the forestry applications (or, if relevant, why it would not be expected to hold such records).

A significant issue is that the Department-�s letter of 16 September said that it could not find any ecology records for a particular forestry application. By contrast, its letter of 3 August 2022 identified these records as being referred to on the ETS. Two-year email retention policy aside, and while the Department is not required to account for each individual record, the apparent lack of records of a particular type is an issue that it should have identified and explained.

Furthermore, the Department-�s decisions cite an incorrect reference number for one of the forestry applications. While this may be a typo or may have arisen from a formatting issue, I cannot assume that the incorrect number was not used in some searches. While it is not for me to review the Department-�s surprising position that it does not have a formal policy for filing official forestry application records, the exact meaning of certain of the comments in the Secretary General-�s correspondence about the retention of staff emails would ordinarily require clarification.

The above is not an exhaustive list of issues. I would point out, in relation to a comment in one of the Department-�s early emails, the question of whether the applicant may have emails etc. in his possession is not relevant to whether the Department-�s searches for its own copies of those records are reasonable for the purposes of s15(1)(a).

Policy records

Our previous decision noted that the Department had not explained the basis for its position that it held no such records. We said that it had not explained from where it had obtained certain policy-related information, which it included in its 31 May 2021 response to the applicant-�s queries of 10 May 2021. We noted also that the Department had not described any searches for the requested policy records.

Neither the Department-�s decision of 17 December 2021 nor the attached schedule said whether the released material included any policy records. In a section headed -�publication-�, the decision said that policies are communicated to foresters and are on the Department-�s website. It said that its referral policy is governed by legislation and provided links to Circulars on forestry grants and premium schemes, and to legislation relating to forestry.

The Department-�s internal review decision referred to -�the policy documents provided -� in respect of inspections, referrals, NWCS applications and complaints procedures -�-� It said -�there is no other relevant material available in addition to that already released.-�

Details sought and provided

The Investigator invited the Department-�s submissions on whether it had released any policy records, on its storage of such records, and on how it had been in a position to provide the relevant details on 31 May 2021, given that it was arguing that records do not exist. The Department-�s response of 10 June 2022 said only that its forestry policy documents were available at a particular link, which it provided, and that relevant details were in its decision of 17 December 2021.

On 26 July 2022, the Investigator told the Department that it was not apparent which, if any, of the Circulars at the link corresponded to the requested records. She asked for confirmation of whether the requested policy records exist.

The Department-�s letter of 3 August 2022 said that the 31 May 2021 details comprise the -�specific information requested-� by the applicant. It said that this did not include its -�internal referrals policy-� (i.e. for referring cases to inspectors and ecology), because it had understood the applicant to have queried only the external referral process. It provided the -�internal referral-� details. It is worth noting here that while the Department may not have been sure as to the meaning of the April 2021 request for the -�FS inspection policy-�, -�FS referral policy-� and -�FS admin/referral policy-� (which it should in any event have clarified), the applicant-�s query of 10 May 2021 asked specifically about inspections and referrals to ecology.

In addition, the Department-�s letter of 3 August 2022 said that its decision of 17 December 2021 included details on -�external referrals-�, but that the circulars at the quoted link concern a broader range of matters than those the subject of the FOI request. It did not elaborate. The Department also said that extracts of the SOP had been provided to the applicant further to the first processing of his request. It said that the SOP was not publicly available and was for inspectors-� guidance only. 

On 17 August 2022, the Investigator asked the Department whether it was releasing the SOP. She asked whether it maintained this was the only relevant policy record held. She said that, if so, it should explain from where it obtained the more descriptive details provided on 31 May 2021.

The Department-�s letter of 16 September 2022 stated that it was releasing the SOP. It said that this is the only relevant policy document, and is a high level outline of the procedure to be followed by inspectors. It said that the 31 May 2021 details were more informative in respect of the risk analysis process, and were -�provided in response to the specific queries raised -� by the inspectors.-�

Analysis

Generally speaking, this Office would not go behind an FOI body-�s position that it does not hold particular requested records. However, the Department has made a number of claims that records covered by this request generally cannot be found or do not exist. However, further forestry application records were found during both OIC reviews.

In relation to the policy records in particular, and regardless of whether the content of the SOP for inspectors is high level, it took the Department from April 2021 to August 2022 to identify it as a potentially relevant record. I also note the Investigator-�s observation that the 31 May 2021 details appear to be more descriptive than the SOP, and the Department-�s position that such detail was provided by its inspectors. I consider that further comment is required from the Department to support its position that it has not formally or informally documented the relevant procedures, for knowledge management, quality control or other purposes.

I note the Department-�s position that it does not hold any complaints policy other than that on the gov.ie website. However, overall I do not consider it to have given me a basis to be satisfied that it has justified its effective reliance on section 15(1)(a) in relation to the requested policy records.

Summary

On the basis of the foregoing, I annul the Department-�s decision in its entirety. I direct it to consider the applicant's request afresh and make a further new, first instance, decision in accordance with the provisions of the FOI Act.

Given the passage of time since the request was submitted to the Department, I acknowledge that this outcome does not resolve the matter for the applicant. However, I consider this to be the most appropriate course of action to take. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department-�s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision. I direct it to carry out a fresh decision making process on the applicant-�s request in accordance with the provisions of the FOI Act.

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.
 

Ger Deering
Information Commissioner