Whether the Department was justified under section 15(1)(a) in refusing access to records relating to the applicant

21 March 2023

Background

In a request dated 4 October 2022, the applicant sought access to all documents, records, notes or telephone reports relating to him, to or from the Department, the Department of Justice or any other department, from 18 May 1988 to 1995. The applicant provided a list of names of individuals who it appears he believed could hold relevant records.

In a decision dated 8 November 2022, the Department refused the applicant-�s request on the basis of section 15(1)(a) of the FOI Act, as it -�[could] not locate [-�] relevant records-�. However, the Department also stated that with the assistance of its File Registry section, -�some records-� had been located relating to his request, but that they were -�under the control-� of the Department of Public Expenditure, NDP Delivery and Reform (DPER).

On 10 November 2022, the applicant requested an internal review of the Department-�s decision. On 24 November 2022, the Department affirmed its original decision. The internal reviewer noted that it would be open to the applicant to submit a request to DPER in relation to -�the files that were discovered that refer to you and which are under the control of that Department-�. On 30 November 2022, the applicant applied to this Office for a review of the Department-�s refusal of his request.

During the course of this review, the Investigating Officer provided the applicant with details of the Department-�s submissions to this Office wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records are held by it relating to his request. The Investigating Officer invited the applicant to make a further submission on the matter. The applicant provided this Office with his comments on 2 February 2023.

The Investigating Officer also asked the Department to clarify some matters during this review, such as why it had not transferred the applicant-�s request under section 12(3) of the FOI Act. She also asked it to clarify the arrangements concerning its records management policy and the File Registry section and to explain its position that it did not hold the records sought for the purposes of FOI. The Department made additional submissions in response to these queries.

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 FOI body in support of its decision and to the applicant-�s comments in his application for review. 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 the applicant-�s request under the provisions of the FOI Act.

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. 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 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. The context of the creation or retention of the records and/or the FOI body-�s explanation as to why it would not expect to hold relevant records may also be relevant.

As I have outlined above, the Department provided this Office with details of the searches it undertook to locate relevant records in this case and of its reasons for concluding that no records exist within the Department. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review. As also noted above, the Investigating Officer provided these search details to the applicant, as well as details of the records identified by the Department and invited him to comment. The applicant, in his response to this Office, did not provide any substantive comments.

In its submissions to this Office, the Department stated that the individuals named by the applicant in his request were staff of other FOI bodies, such as the Department of Justice and/or the Irish Prison Service. Its position was that none of the individuals listed were currently or had been staff of the Department and that therefore they had not been consulted for the purposes of locating relevant records in this case. I have no reason to doubt the Department on this matter.

Generally speaking, if an FOI body has identified records relating to an applicant-�s request, it would be difficult to justify a decision to refuse access to those records under section 15(1(a). However, in this case, the Department stated that the three records, which were located within its File Registry Section, are held by DPER for the purposes of FOI and not by the Department. The Department also stated that as the records -�are not in the custodianship of the Department of Finance it is not open to [it] to release them-�.

By way of background, the Department said that it and DPER were part of one department (the Department of Finance) until 2011. Essentially, it stated that, although the department was split into two separate bodies, the departments continued to -�share some office space-� and on that basis, -�it was possible for the Department to locate these files.-� The Department provided a copy of its records management policy, which applies to both departments. Its position is that the content of the records located in this case relate to functions which were transferred to DPER. While the Department has not elaborated on this position, I understand that various functions relating to HR transferred to DPER in 2011. Having regard to the nature of the records sought in this case which relate to HR matters concerning the applicant, I am satisfied that they would be most likely to come under DPER-�s functions and not those of the Department.

It is important to note that the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found or are not held by a particular FOI body. The role of this Office is to determine if the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. In the circumstances of this case, I am satisfied that the Department does not hold the records sought. Accordingly, I find that the Department was justified in refusing the applicant-�s request on the basis of section 15(1)(a).

Section 12(3)

The Investigating Officer drew the Department-�s attention to section 12(3) of the FOI Act, which provides as follows:

-�(3) Where a request under this section is received by the head of an FOI body (the head) and the record or records concerned are not held by the body (-�the first-mentioned body-�) but, to the knowledge of the head, are held by one or more other FOI bodies, the head shall, as soon as may be, but not more than 2 weeks, after the receipt of the request, cause a copy of the request to be given to the head of the other body or, as the case may be, to the head of that one of the other bodies

(a) Whose functions are, in the opinion of the head, most closely related to the subject matter of the records concerned, or

(b) That, in the opinion of the head, is otherwise most appropriate,

and inform the requester concerned, by notice in writing or in such other form as may be determined, of his or her having done so and thereupon-�

(i) The head to whom the copy aforesaid is furnished shall be deemed, for the purposes of this Act, to have received the request under this section and to have received it at the time of the receipt by him or her of the copy, and

(ii) The head shall be deemed, for the purposes of this Act, not to have received the request.-�

This Office queried why the Department had not transferred the applicant-�s request if it believed that the records were held by another FOI body (DPER). In response, the Department stated that it had not transferred the request as the relevant two-week period to transfer the request under section 12(3) -�had passed-� by the time the files were located and examined.

As set out above, it seems to me that it should have been reasonably clear to the decision maker that the records in question, which appear to relate to HR matters, would fall under DPER-�s remit and not that of the Department. I would expect the Department to have appropriate records management practices in place so that FOI requests for records relating to the period before the departments split could be processed efficiently. This seems particularly relevant in circumstances where one department is refusing a request on the basis that the other department holds the records sought. I would also expect the Department to ensure that future requests are dealt with in a more efficient and effective manner.

It is, of course, open to the applicant to make a request to DPER for access to the records identified in this case, if he has not already done so.

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), to records relating to the applicant.

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.

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Sandra Murdiff
Investigator