Whether the OPR was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

22 February 2023

Background

The applicant in this case is a TD. In a request dated 10 May 2022, the applicant sought access to records from the OPR, its executive and/or members concerning or that refer to her between 1 November 2019 and the date of the request. On 9 June 2022, the OPR issued a decision wherein it part granted the applicant-�s request. It released 16 records in whole or in part, with certain information redacted under sections 36(1)(b) and 37(1) of the Act and refused access to 7 records under section 15(1)(i)(i) of the Act, on the ground that the records are already available to the applicant. 

In an email to the OPR dated 17 June 2022, the applicant essentially argued that its response to her request was incomplete as she was -�aware of correspondence that has taken place with local authorities-� which had been omitted by the OPR. On the same date, the OPR offered to assist the applicant with her query in order to identify the additional records to which she referred in her email. The OPR indicated that it would be -�helpful to discuss-�, -�any particular records-� that the applicant was aware of and asked her to -�provide clarification-� concerning the correspondence with other local authorities referred to in her email. It is my understanding that the applicant did not engage with the OPR in this regard, rather, on 27 June 2022, she sought an internal review of the OPR-�s decision. In her application for an internal review, she reiterated that she had sight of correspondence, including text messages, which exist but were not provided to her by the OPR. In a decision dated 13 July 2022, the OPR affirmed its original decision.

On 16 November 2022, the applicant applied to this Office for a review of the decision of the OPR as she was of the view that additional records should exist relating to her request. She provided this Office with copies of email correspondence between the Planning Regulator and the CEO of a local authority, which she said that she had obtained through a separate FOI request to the latter organisation. She argued that the email exchanges were -�indicative of potential further exchange(s) between the two parties involved.-� She said it was not unreasonable to expect the OPR to have -�a fit for purpose Records Management System-� which should be capable of identifying -�all emails issued by the office, particularly within the last two years.-�

During the course of the review, the Investigating Officer provided the applicant with details of the OPR-�s submissions wherein it outlined its reasons for concluding that the records sought do not exist or could not be found. The Investigating Officer also outlined her preliminary view that the OPR had taken reasonable steps to locate the records sought and invited the applicant to make further submissions on the matter. In response, the applicant sought clarification on a number of issues relating to the classification and retention of temporary records by public bodies, including the OPR. The applicant indicated that she was reserving her position as to whether she would proceed with or withdraw her application pending clarification by this Office. On 13 January 2023, the Investigating Officer responded to the applicant-�s queries and asked her whether she wished to proceed with her application. On 25 January 2023, the Investigating Officer again asked the applicant to confirm how she wished to proceed. As the applicant has not responded to date, I am proceeding on the basis that she does not accept the views of the Investigating Officer. I have decided to bring this review to a close by way of a formal, binding 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 correspondence between the applicant and the OPR as outlined above, and to communications between this Office and both the applicant and the OPR on the matter.

Scope of Review

As the applicant did not raise any concerns about the small amount of information redacted from the records released, the OPR-�s reliance on sections 36(1)(b) and 37(1) will not form part of this review.

As noted above, the applicant believes that additional relevant records exist. The position of the OPR is that no further records falling within the scope of her request exist, other than those which it released and/or refused under sections 36(1)(b) and 37(1) of the Act. This is, essentially, an effective decision to refuse to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is solely concerned with whether the OPR-�s refusal to release additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found within the OPR after all reasonable steps to ascertain their whereabouts have been taken, was justified.

Preliminary Matters

It is important to note at the outset that 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.

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. The role of this Office 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

In this case, the Investigating Officer sought a submission from the OPR, wherein she asked it, among other things, to provide details of the searches undertaken on the foot of the request. In its response, the OPR explained that the request was circulated to -�every member of OPR staff, including the Chief Executive/Planning Regulator-�. It said that it made clear that the request -�related to any records that might exist including written or electronic correspondence, notes of telephone conversations/meetings, text/WhatsApp messages, etc." It stated that the OPR maintains a paperless office and that -�formal records-� are saved electronically to its eDocs file management system, while -�temporary records-� are held on the Outlook email system or on individuals-� work mobile phones.

The OPR stated that its staff are provided with iPhones and said that SMS text messages and messages on other messaging applications can be searched -�by using the search function-� in the relevant application. It said that it was the responsibility of each staff member to use appropriate search words/terms, based on the particulars of the request, but that as this request specifically concerned references to a named individual, -�the search terms used were the individual-�s name and variations of their name.-� It stated that 25 records which referred to the applicant were identified on foot of its searches, but that two of the records were found to be outside the scope of the request as they did not fall within the relevant timeframe and accordingly, were not considered for release. It said that the only records identified contained the applicant-�s full name.

On the matter of the email correspondence identified as missing by the applicant, the OPR confirmed its position that other than the records identified in the processing of her FOI request -�no other records are held for the specified timeframe, which specifically refer to [the applicant]-�. It accepted, however, that other records are likely to have existed previously, albeit on a -�temporary-� basis.  It stated that the OPR-�s Records Management Policy requires that OPR staff keep their email mailboxes -�under control through regular maintenance-�. It said that this includes deleting emails that -�do not need to be retained as a record-�. It said the Policy, a copy of which was provided to this Office during the review, outlines that emails, which are required for -�long-term record keeping-� should be saved onto the eDocs file management system but also states that -�the majority of sent emails need not be retained.-� It stated that among the categories of emails that should be retained as long-term records are those that -�record decisions and policy changes, financial or other transactions-� or that contain -�recommendations or views that have a direct bearing on the organisation-�s business.-�

The OPR suggested that the correspondence referred to by the applicant -�may not have been considered to be of long-term business importance to the organisation-� by the individual that issued it. It noted that the applicant, in her capacity as a TD, plays an active role -�in relation to planning matters-� and said that details of her inputs -�feature regularly-� through the internal circulation of extracts of media monitoring and Oireachtas transcripts. It stated that while the circulation of such topical information was useful at the time -�it is not the intention that such material would be retained and filed to become formal records-�. The Council said that this is also the position with regard to -�other informal correspondences, whether internal or external.-�

Essentially, the OPR stated that, in line with its Records Management Policy, the email correspondence referred to by the applicant was not filed to eDocs and was in due course deleted from the Outlook email system. It said that it was unable to perform search and retrieval in relation to older deleted emails in line with its Records Management Policy, as its ICT service providers, the Office of the Government-�s Chief Information Officer (OGCIO) -�do not provide a service to customer organisations whereby emails that have been deleted from servers, etc. can be restored for any business purposes, including FOI requests.-�

As I outlined above, details of the OPR-�s searches were provided to the applicant. In response, she said that the missing email was issued by the Regulator who was -�the holder of a statutory office and the CEO-� of the OPR and that it was sent -�via his official e-mail to the CEO of a local authority.-� She said, -�the communication concerned an issue of national importance which had been discussed in the Dáil-� and argued that -�the chief executive to whom the e-mail was addressed did not regard it as a record that warranted deletion.-�

Following a request for clarification on the use of mobile phones, the OPR clarified that OPR staff use mobile phones for day-to-day communication when not at their landlines and that the use of text messaging for work purposes -�would have limited practicality-�. It said that text messages and other types of messaging are treated -�in the same manner as emails-�.

In subsequent submissions to this Office, the OPR said that the preparation of notes of phone calls or video conference meetings, or their formalisation into long-term records, depends -�on the status of the engagement-�. It essentially stated that in line with its Records Management Policy, records of phone calls or video conference communications are created and retained where they -�support and document processes of business management and administration-� and where they are relevant to decision-making or customer service matters. It said that video conferencing allows greater scope for meetings and that -�consideration will be given to the minuting of any such meetings-�. It said minutes of meetings -�are considered formal records-�. The OPR-�s position is that when processing the applicant-�s request, staff would have searched any available notes of phone calls or meetings, or minutes of meetings and that no additional records were located.

Section 15(1)(a) of the FOI Act 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 takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. We 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 thatoughtto exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

Furthermore, as noted by the Investigating Officer in correspondence with the applicant, records management is largely a matter for individual public bodies and is governed by the requirements of each body's business. While the FOI Central Policy Unit of the Department of Public Expenditure and Reform has issued a Code of Practice to provide guidance in relation to records management, including data creation and routine record retention and destruction (available athttps://foi.gov.ie/code-of-practice/), I am willing to accept that two FOI bodies who hold copies of the same correspondence may treat the records differently in line with their individual records management policies.

The question I must consider in this case is whether the OPR has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the OPR-�s submissions and to its explanation as to why it considers that no further relevant records exist, I am satisfied that it has. While the applicant does not appear to accept the OPR-�s explanation that no further relevant records exist, nor that the missing correspondence was deleted and cannot now be retrieved, I have no reason to doubt the OPR-�s submission that the records concerned were deleted in line with its Records Management Policy and that the deleted emails are not searchable or retrievable.

Accordingly, I find that the OPR was justified in refusing, under section 15(1)(a) of the Act, to release additional records relating to the applicant-�s request other than those already released, on the ground that no further records 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 OPR-�s decision to refuse access, under section 15(1)(a) of the Act, to further records relating to the applicant, on the ground that no such additional records containing the information sought exist.

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