Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to various records relating to the interactions between a named individual (Mr X) and other civil servants concerning the applicant

7 June 2023

Background

By way of background, I understand that the applicant in this case was employed as a prisoner officer in the 1980s. I also understand that Mr X was the Head of Prisons at the time, but that he has since been employed by the Department. On 20 January 2023, the applicant sought access to all records including correspondence, with the Department of Finance or any Department relating to interactions between Mr X -�and any civil servant-� concerning the applicant. On 23 January 2023, the Department informed the applicant that the records he sought were held by the Irish Prisons Service (IPS) and that his request should be directed there. The applicant responded on the same date to say that the IPS stated that the records were held by the Department. He asked the Department to confirm whether it was refusing his request.

In a decision dated 30 January 2023, the Department refused the applicant-�s request under section 15(1)(a) of the FOI Act. It stated that the IPS held all historic records relating to prison officers. On 7 February 2023, the applicant requested an internal review. In a decision dated 23 February 2023, the Department upheld its initial decision. It stated that it was -�not the owner of historic records-� relating to prison officers, which were held by the IPS. On 24 February 2023, the applicant applied to this Office for a review of the Department-�s decision.

During the course of this review, the Investigating Officer provided the applicant with details of the Department-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records relating to his request existed or could be found within the Department. The Investigating Officer invited the applicant to make further submissions or comments on the matter. The applicant provided this Office with his comments on 28 April 2023.

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 Department in support of its decision and to the applicant-�s correspondence with this Office. I have decided to conclude the 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 section 15(1)(a) 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 their 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.

As noted above, the Department provided this Office with details of the searches it said it undertook in an effort to locate relevant records and its reasons for concluding that no records exist or can be found. The Investigating Officer provided the applicant with an outline of the Department-�s submissions in this regard. 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.

In its submissions to this Office, the Department stated that although it maintains an active role in the IPS-�s administration, this role is limited to advising and consulting -�on strategic HR issues and requirements-� as well as overseeing -�senior and board recruitment/appointments for particular agencies-�. Its position is that any other HR-related functions are undertaken by the IPS itself, including the retention of personal files.

The Department stated that before June 2015, all information requests for records held by the IPS were handled by the Department, who released relevant records on the IPS-�s behalf. It said that since June 2015 the Department has directed all requests for IPS records to the IPS who has its own information access unit. The Department also stated that the applicant in this case was informed of this in 2016 and -�on numerous occasions since then.-�

The Department informed this Office that Mr X was a Head of Prisons during the applicant-�s employment as a prison officer. It also stated that he remained employed by the Department. However, it reiterated that all records relating to prison personnel were transferred to the IPS in 1999, including records relating to employment, disciplinary action and dismissal.

In response to queries from the Investigating Officer, the Department said that it contacted the IPS in relation to the applicant-�s request. It stated that the IPS confirmed to the Department that it rejected the applicant-�s request -�in error-�.

As mentioned above, the Investigating Officer provided the Department-�s search details to the applicant and invited him to make further submissions or comments. In his response, the applicant stated that the Department had -�no good reason-� for refusing his request, which concerned information, which -�was personal to [him]-�. However, he made no substantive comments on the application of section 15(1)(a) of the FOI Act.

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 arise where records are lost or simply cannot be found. What the FOI Act requires 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. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

I have had regard to the Department-�s details of the searches carried out as well as to its explanation as to why it believes that no records exist or can be found in the Department relating to the applicant-�s request. I have also had regard to the applicant-�s comments to this Office. In the circumstances of this case, and in the absence of any substantive arguments or evidence to the contrary, 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 the applicant-�s request on the basis of section 15(1)(a) of the FOI Act.

While I accept that the applicant will be disappointed in this decision, it is of course, open to him to make a new request to the IPS for the records sought. In this regard, I note the IPS-�s comment to the Department that it had initially refused the applicant-�s request in error.

I would also remind the Department that the relevant parts of section 12(3) of the FOI Act provide that where a request for access to records is received by the head of an FOI body

and the record or records concerned are not held by the 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. I would expect the Department to have regard to this provision when processing future requests for access to records which are held by the IPS.

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) of the FOI Act, to records relating to the applicant-�s request on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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