Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records concerning a meeting held between the Minister for Justice and the Irish Penal Reform Trust on the basis that no further records exist or can be found

15 December 2023

Background

In a request dated 28 February 2023, the applicant made a request to the Department for access to records of correspondence and minutes of meetings between the Minister for Justice and the Irish Penal Reform Trust (IPRT) on the subject of parole and parole for determinate-sentenced prisoners, from 1 January 2022 to the date of receipt of the request. On 19 April 2023, the Department issued a decision wherein it granted the applicant's request and released the note of a meeting held on 9 November 2022 between the Minister and IPRT, with the names of the IPRT attendees redacted under section 37 of the FOI Act.

On 14 July 2023, the applicant made a request for an internal review, requesting a copy of the minutes in full. He said he had requested "the minutes of meetings" and not the "meeting note" which was released to him by the Department. On 17 August 2023, the Department issued an internal review decision affirming its original decision. The Department said that it consulted with those in attendance at the meeting and confirmed that no further records relating the applicant's request exist. On 28 August 2023, the applicant applied to this Office for 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 it had carried out to locate the records sought by the applicant and its reasons for concluding that additional records relating to the applicant's request do not exist or cannot be found. The applicant was given the opportunity to comment, which he duly did. He maintains that further records should exist.

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 in his application for review, the additional correspondence from the applicant and to the submissions made by the Department in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant considers that further relevant records should exist. The Department's position is that it has now taken all reasonable steps to locate relevant records and that no further relevant records, apart from the record already released, exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI 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, under section 15(1)(a) of the Act, in refusing access to any additional relevant records coming within the scope of the applicant's request apart from the record already released.

As the applicant did not raise any issue about the small amount of personal information redacted from the record released to him, I have not considered those redactions.

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 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 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 a review by this Office is not concerned with access to records that a requester believes ought to exist.

As I have outlined above, the Department provided this Office with details of the searches it said it undertook in an effort to locate further relevant records, and its reasons for concluding that no further records exist. The Investigating Officer provided the applicant with details 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 essence, the Department's position is that there was one meeting held between the Minister and the IPRT on 9 November 2022 and that there is only one record relevant to this request, namely, a meeting note taken by the Assistant Secretary, which it released to the applicant, apart from the redactions noted above. It said that while minutes are produced for some meetings, a note may be produced if it is more practical. It said that in this case, no further records, other than the note of the meeting, exist or can be found. 

The Department said that five individuals attended the meeting on 9 November 2022, comprising two members of the IPRT, the Minister, her Special Advisor and the Assistant Secretary. It said that records pertaining to meetings attended by the Minister are typically stored on the Department's eDocs folder, which was searched using the terms "Irish Penal Reform Trust" and "IPRT". It said that searches were also conducted on the email accounts of the Minister's office staff to check if any meeting notes of minutes were sent by the IPRT attendees. It said that no records were found on foot of its searches.

The Department said that the Assistant Secretary, who attended the meeting, conducted a search on his computer system and located a note that he had taken during the meeting. It said that this record was released in part to the applicant. It said that following the applicant's request for an internal review, the Minister's Office confirmed that records would not be stored elsewhere.

In his response dated 23 November 2023, the applicant said that he was aware of the searches carried out by the officials in the Department files. He expressed the view that "nobody on the Minister's side were asked for the minutes" and that "the Minister and her advisor should have been asked for their records."

During the course of the review, the Department clarified that the email accounts of the Minister and her Special Advisor were searched and that no further records were found. As noted above, in its internal review decision the Department said that it consulted with those in attendance at the meeting and confirmed that no further records relating the applicant's request exist.

It is clear from the applicant's submissions to this Office that he does not accept the Department's position. That being said, he has not provided any substantive argument as to why further searches should be carried out. Neither did he provide any evidence in support of his view that additional records held by the Departmentshould exist. While the applicant is of the view that "nobody on the Minister's side was asked for the minutes" and that "the Minister and her advisor should have been asked for their records", I have no reason to doubt the Department's submission that the relevant email accounts of staff in the Minister's Office were searched for records, including the accounts of the Minister and her Special Advisor. While the applicant appears to believe there ought to be a fuller account of the meeting, in my view the minutes of these type of meetings are not generally a verbatim account of the meeting. In the circumstances, I see no reason not to accept that the note of the meeting provided to the applicant is the Department's only record of the meeting and that no further records exist or could be found.

It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. 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 body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record(s) sought.

In the absence of evidence to suggest that further searches should have been undertaken, it seems to me that the Department has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records can be found. In the circumstances of this case, I find that the Department was justified in refusing access to further records relating to the applicant's request under section 15(1)(a) of the FOI Act, 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 Department's decision to refuse, under section 15(1)(a) of the FOI Act, further records relating to the applicant's request on the basis that no additional 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.

Richard Crowley
Investigator