Whether the Department was justified in its decision to refuse access, under section 15(1)(a) of the Act, to records relating to the decision to award a named company a contract for provision of catering services to Ukrainian refugees without a tender competition on the ground that no further records exist or can be found

31 January 2023

Background

In a request dated 2 May 2022, the applicant sought access to records relating to the decision to award a named company a contract for the provision of catering services to Ukrainian refugees without a tender competition. The company in question is a service and solutions provider in the areas of food, facilities management, property services and retail.

On 2 August 2022, the applicant sought an internal review on the basis of a deemed refusal. In a decision dated 17 October 2022, the Department part-granted the applicant-�s request. It granted access to an extract from a briefing for the Public Accounts Committee on 2 June 2022 (record 1) and part-granted access to an extract from a Finance Unit briefing in advance of the Public Accounts Committee on 2 June 2022 (record 2) wherein it redacted the name of a third party organisation under Section 36(c) of the Act.

In its internal review decision, the Department also provided the applicant with an explanation of its derogation from procurement procedures arising out of the unfolding humanitarian crisis and displacement of Ukrainians as a result of the ongoing war in Ukraine since 24 February 2022, and the numbers of Ukrainian refugees arriving in to Ireland. It referred to the Temporary Protection Directive 2001/55/EC, as activated by EU Council Decision 2022/382, and stated that it had entered into a number of arrangements to provide accommodation in the short to medium term to displaced persons. The Department stated that it was not in a position to follow standard procurement procedures due to the large numbers of refugees seeking accommodation and the urgency involved. It finished by saying that -�[o]n this basis, the Department chose to enter into short term contracts with various providers without undergoing the standard procurement arrangements.-�

On 18 October 2022, the applicant made an application for review to this Office, as he was of the view that additional records should exist relating to his request.

At the outset of the review, the Investigating Officer outlined her view to the Department that a second extract from record 1, albeit a duplicate of the extract which was released to the applicant, should also have come under consideration for release. I understand that this part of the record has now been released to the applicant.

During the course of the review, the Department located two additional relevant records which I understand it has released to the applicant in part.

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 Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

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

The Department-�s position is that no further relevant records exist. This is, effectively, a refusal to grant access to additional records relating to the applicant-�s request 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 concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional records within the scope of the applicant-�s request on the ground that no such records exist or can be found within the Department after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

Before I address the substantive issues, it is important to note that section 22(12)(b) of the Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.

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 its initial submission to this Office, the Department-�s FOI Officer explained that he was unable to detail the exact searches carried out for the records sought, as he was -�coordinating this request-� but -�[did] not work in that functional area-�. He also said that while he was unable to say whether relevant records could exist elsewhere, he had been -�assured by [his] colleagues that [additional] records do not exist.-� Specifically, he said that he spoke to a senior official in the Ukraine procurement team who advised him that no records existed relating to the decision to award the named company the relevant contract.

The Department stated that early on in the crisis it became clear that the procurement of suitable accommodation with the required urgency would require a derogation of procurement laws. The Department-�s position was that this decision was not contained in any records, but that rather, it was made -�during face to face meetings.-� It also stated that while this practice did not follow standard procurement procedures, it reflected the extremely challenging situation that the Department was dealing with in responding to the Ukraine crisis.

In response to a request for clarification, the Department maintained its position that it did not hold any additional relevant records. However, it clarified that the face to face meetings mentioned previously had concerned the derogation of procurement procedures generally, rather than specifically about the contract awarded to the named company in this case. The Department stated that the records sought -�may exist, but not within [the] Department-�, as it had not carried out the relevant procurement. It stated that the relevant local authorities, such as Dun Laoghaire-Rathdown County Council, could hold records relating to the applicant-�s request, as they had contracted the company concerned.

At this stage, I think it is worth noting the obligations of both the requester and public bodies under the FOI Act in cases such as this. While section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps, section 11(2) of the FOI Act also requires public bodies to give reasonable assistance to requesters in relation to the making of requests. Given the Department-�s amended position that additional potentially relevant records may be held by Dun Laoghaire-Rathdown County Council, and/or other councils, it seems to me that the Department should have, at a minimum, informed the applicant of this fact so that he could decide if he should more appropriately address his request, in whole or in part, to the Council or other FOI bodies.

The Investigating Officer asked the Department for further clarification on these matters, specifically, she asked it to confirm which body had requested the company concerned to provide the services in question, as this was not clear from the content of the records initially identified. Notwithstanding its amended position that contracting arrangements with the named company were managed by the relevant local authority, the Department subsequently informed this Office that two additional relevant records were located. These records show that the Department -�helped to put an emergency catering solution in place-� at Ballyogan Accommodation Centre at the request of Dun Laoghaire-Rathdown County Council. The Department stated that this action was -�taken at short notice in order to facilitate emergency accommodation becoming available as soon as possible-�. It said that as Dun Laoghaire-Rathdown County Council were under -�considerable pressure-� to begin operating the centre, the Department -�agreed to the named company providing the catering solution on the Council-�s behalf-� and -�agreed to pay the named company directly for any associated costs.-� The Department stated that it has released both of these additional records to the applicant with minor redactions under section 36(1)(b) and section 37(1) of the Act.

Having carefully examined the content of the additional records, which comprise email correspondence between Department and Council officials, I am satisfied that they come within the scope of the applicant-�s request. The Department is of the view that all relevant records have been located. However, the additional records located refer to further contact between the company concerned and the Department which is not reflected in the records identified by the Department. Furthermore, I note that the Department did not provide any details of the searches undertaken to locate the additional two records in this case. In my view, the Department has not demonstrated that it has taken all reasonable steps to ascertain the whereabouts of all relevant records in this case.

Accordingly, I find that the Department was not justified in refusing access to additional records on the basis of section 15(1)(a). In the circumstances, I consider that the most appropriate course of action to take is to annul the Department-�s decision, the effect of which is that the Department must consider the applicant-�s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. 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.

For the sake of completeness, I should say that in processing the applicant-�s request afresh, I would expect the Department to inform the applicant if it is of the view that another FOI body such as Dun Laoghaire-Rathdown County Council holds records relating to his request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request. I direct it to conduct a fresh decision-making process on his request.

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