Whether the Department was in refusing access to certain information in records relating to two applications for forestry licences on the basis of section 37(1) of the FOI Act and on refusing access to any further records on the basis that no further records exist or can be identified

22 March 2023

Background

In a request dated 22 February 2022, the applicant sought access to all records relating to the two applications for forestry licences; numbered CN88472 and CN88289. With respect both applications a company in which the applicant is a director is named as the forestry agent.   The licences with respect to both of these applications have been granted by the Department. 

On 23 March 2022 the Department issued its decision.   It identified 96 records as falling within the scope of the applicant-�s request.   It granted access to 94 of these records while refusing access to parts of two records on the basis of section 37 relating to personal information. 

On 30 March 2022 the applicant appealed the matter and in doing so indicated that he believed that further records relevant to his request existed which had not been identified.  The applicant provided examples of the types of records which he believed existed and which had not been identified. 

On 24 June 2022 the internal reviewer affirmed the original decision. 

On 12 July 2022, the applicant applied to this Office for a review of the Department-�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 applicant-�s comments in his application for review and to the submissions made by the Department in support of its decision.  I have also regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its submission to this Office the Department raised section 15(1)(g) for the first time.  This provision provides that an FOI body may refuse to grant a request if it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.   However, and not withstanding thede novonature of reviews by this Office, as the applicant has not had the opportunity to comment on the applicability of this exemption in this case I do not consider it appropriate for me to examine this provision as part of my review. 

With regard to record 74, in the course of my correspondence with the Department I queried certain redactions which had been made.  In particular, while I accepted that a data entry from 10 March 2022 fell outside the scope of the applicant-�s request, I queried the basis on which certain other information on page one of the record had been redacted.  Following this, the Department supplied a revised redacted version of this record to this Office which I understand it was agreeable to releasing to the applicant.  However, I will consider the remaining information related on page 4 of the record on the basis of section 37(1) further below. 

The scope of this review is therefore concerned with whether the Department was justified in refusing access, under section 37(1) to certain information in the relevant records, and to any other records apart from those already identified during the processing of the request on the ground that no further relevant records exist or can be found.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, 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 records 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.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI 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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In his correspondence with this Office, the applicant argued that further records relevant to his request exist and should have been released to him. He provided details of the types of records which she believed existed. 

During the course of the review, the Department provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. By way of background the Department indicated that records relating to applications for forestry licences are stored on the Forestry Licence Viewer database which is accessible to the public.  In addition, the Department has indicated that inspectors or internal administration staff may engage in email correspondence in relation to a specific application.    The Department further indicated that inspectors conduct a lot of their business by telephone, in person or on-site.  The Department also indicated that the -�Notes-� section of the IFORIS database, which provides online tracking of forestry applications, can be updated at any time by inspectors and not necessarily on the particular day that they are carrying out their duties. 

With regard to the searches which were conducted by the Department following the receipt of the applicant-�s request the Department indicated that searches were conducted on three occasions for relevant records and no further records were identified other than the 96 records which were initially identified.   With regard to the applicant-�s specific query regarding any records held by the Ecology Section, the Department indicated that both of the relevant forestry licence applications were -�screened out-� which means that there was no action required from the Ecology Section. 

In the course of the review by this Office I provided the above details to the applicant.  In response, the applicant indicated that it was clear from the records provided to him that both applications had been referred to the Ecology Section and had been referred to an ecologist for review.  The applicant further argued that there should be much more information provided from the Ecology Section and the Ecology Tracking System (ETS). The applicant further argued that there must be an original copy of the referral to Transport Infrastructure Ireland (TII) with intact metadata and associated emails.  With regard to the Department-�s contention the -�Notes-� section of the IFORIS database can be updated at any time, the applicant argued that he did not believe that the certification data can be backdated as it would be very misleading.  Finally, the applicant argued that there is a section missing from the IFORIS Notes. 

Following receipt of the applicant-�s comments I provided details of these to the Department and sought further submissions from them with regard to the matters raised.  In response the Department indicated that notwithstanding the applicant-�s view that further records may exist, it was satisfied that all records relevant to the request had been identified. 

The Department also provided further details in relation to the searches it had undertaken following the applicant-�s request.  By way of background, it provided details of the workflow process followed in the Forestry Division when applications for forestry licences are submitted.  It said that when such applications are received, following registration and validation, an acknowledgment letter issues to the applicant.  It also provided this Office with details of the types of documents which would be submitted as part of the application process.   It further indicated that letters issue to referral bodies and a consultation process is undertaken.  The Department provided an outline of the three stages of the public consultation process.  It further indicated that following this consultation process the relevant data is entered on the IFORIS database, following which a decision is taken either to approve, refuse or seek further information in relation to a specific forestry application. 

The Department indicated that in line with the above workflow process, all documentation belonging to any application for a forestry licence is stored on the IFORIS database.  It indicated that following the applicant-�s request an email issued to each area which may be involved in different elements of any forestry licence application and relevant officials were asked to search for records.   If further indicated that all key personnel searched their computers using the contract reference numbers associated with each application; i.e. CN88472 and CN88289.  Finally, it indicated that no documents had been destroyed in relation to either application CN88472 or CN88289.  

In conclusion, it is the Department-�s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant-�s request have been identified. 

It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. The Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body-�s records management policies.

It is also important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

I appreciate that the applicant may be disappointed that additional relevant records cannot be found. Nevertheless, having regard to the Department-�s explanation of its records management practices and to the details of the searches undertaken, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the ground that no further relevant records exist or can be found.

Section 37

The Department has refused access to information in record 59 and 74.  The specific information relates to the names and contact details of individuals other than the applicant. 

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (ii) information relating to the financial affairs of the individual.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.  

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find, therefore, that the Department was justified, under section 37(1) of the Act, in refusing access to information in record 59 and 74. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I affirm its decision to redact, under section 37(1) certain information in records 59 and 74.  I also affirm its decision to refuse access, under section 15(1)(a), to any additional records on the basis that no further records exist or can be found. 

In addition, I refer to the Department-�s proposal to release a revised version of record 74 to the applicant and I direct that it release this to the applicant, unless it had already done so. 

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.

Mary Connery
Investigator