Whether the Department was justified in refusing access to additional records related to or arising from the applicant-�s correspondence to a number of public bodies under section 15(1)(a) of the FOI Act

13 July 2023

Background

On 6 March 2023, the applicant sought access to records of any calls, emails, notes, memos, briefings, correspondence, minutes and/or any other records held in relation to or arising from a number of letters which I understand he had sent to various officials, as follows:

1. Pension application letter to An Taoiseach and Minister for Education dated 19 April 2021,
2. Letters to the Comptroller and Auditor General dated 10 May, 28 June and 11 July 2022,
3. Letter to the Government of Ireland dated 31 August 2021,
4. Letters to the Chief Justice dated 4 March and 20 December 2022, and 30 January 2023, 
5. Letters to the President of Ireland dated 22 September 2022 and 13 February 2023,
6. Letters to Standards in Public Office Commission dated 22 September and 20 December 2022.

On 7 April 2023, the applicant requested an internal review, as he had received no decision on his request. On 5 May 2023, the Department issued an internal review decision part granting the applicant-�s request. The Department identified 16 records relating to part 1 of the applicant-�s request, which it released in full. It refused parts 2-6 of his request on the basis that no records were located (section 15(1)(a) of the FOI Act refers). The Department stated, however, that other FOI bodies might hold records relevant to parts 2, 4, 5 and 6 of the applicant-�s request.  

On 28 April 2023, the applicant applied to this Office for a review of the Department-�s decision. He indicated that he was unhappy with the Department-�s failure to issue a decision within the timeframe set out in the FOI Act in response to his original and internal review requests. On 23 May 2023, the applicant provided this Office with additional information regarding his request for records. He stated that relevant meetings had been held and that he had not been provided with copies of minutes from these meetings, nor was there a record of these meetings having taken place. In particular, he referred to a special meeting of the Taoiseach and the Minister for Education on 15 November 2022 in this regard.

During the course of this review, the Department provided submissions to this Office in support of its decision to refuse parts 2-6 of the applicant-�s request. The Investigating Officer provided the applicant with details of these submissions, including the Department-�s reasons for concluding that additional relevant records do not exist. The applicant was invited to make further submissions, however, to date he has not done so.

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 applicant and to the submissions made by the Department in support of its decision. I have also had regard to the records released to the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant remains of the view that additional records should exist relating to his request. This review is therefore concerned solely with whether the Department was justified in refusing to release additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act.

Preliminary Matters                                                                       

It is important to note as a preliminary matter that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall disregarded. This means that this Office cannot have regard to the applicant-�s motives for seeking access to the information 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 FOI Act requires a consideration of public interest (not applicable in this case).  

It is also important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined to reviewing the Department-�s decision on the applicant-�s request.

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. As also noted above, 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 purposes of this review.

In its submissions to this Office, the Department provided details of its records management policies and processes relating to physical and electronic files. It stated that the relevant electronic files were searched to locate records relating to the applicant-�s request. It said that searches were carried out using various keywords including variations of the applicant-�s name, and keywords relevant to his request, but that no relevant records were located. It noted that it had received additional correspondence from the applicant during the course of this review, but that as the records were created on 14 March and 8 May 2023, they fall outside the scope of his original request.

As noted above, the applicant is of the view that a number of meetings took place arising from his correspondence listed above, in particular, a specified meeting in November 2022, and that he had not been provided with any records relating to these meetings. On foot of his comments, the Investigating Officer queried the lack of records relating to a meeting between the Taoiseach and the Minister for Education on 15 November 2022. In its response, the Department stated that no such special meeting took place, and as a result no records relating to such a meeting exist. The Department-�s position is that all records it holds relating to the applicant-�s request have been located and released.

It is 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-�s explanation of why a record does not exist. The test in section 15(1)(a) is where the body has taken all reasonable steps to locate the record sought.

Having regard to the submissions provided by the Department, which outline the searches that were undertaken to locate records relating to the applicant-�s request and to its explanation for concluding that no additional records exist, it seems to me that the Department has taken all reasonable steps to locate the records sought. As noted above, an FOI body is not required to create records in response to an FOI request where none are held. In the circumstances of this case, I am satisfied that the Department has taken reasonable steps to locate such records and that it has adequately explained that it would not expect to hold records relating to correspondence sent to separate FOI bodies.

Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relevant to the applicant-�s request on the ground that no further records exist or can be found in the Department 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 Department-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can 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