Decision
Mr Y and Tailte Éireann
From Office of the Information Commissioner (OIC)
Case number: OIC-144748-J2H1R5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/144748.html
Cite as: [2024] IEIC 144748
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Whether Tailte Éireann was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the bulk transfer of charges on the ground that no records that contain the information sought exist, other than those that are publicly available
7 October 2024
This case has its background in the process through which a charge is registered on a property. A charge is described on Tailte Éireann's website as a burden which renders the land liable as security for payment of a sum of money. For example, mortgage loans are generally secured through a legal charge on a property. In recent years a number of lenders sold their loan books to other institutions. This resulted in the charges relating to those loans being transferred in favour of the company that purchased the loan book. As I understand it, a bulk application may be made to Tailte Éireann to transfer a number of these charges through a process referred to as "Bulk Transfer of Charges". A property registered with Tailte Éireann is registered in a document called a Land Registry Folio.
In a request dated 6 September 2023, the applicant made an FOI request to Tailte Éireann in relation to charges inserted in folios by Tailte Éireann arising from the sale of mortgages and/ or loans with secured assets. The applicant said his request is in relation to:
1. The pre-existing authority, such as it was to insert these records on a folio
2. Any authority from an external source, more particularly Government or in house instructions or mandates, which were designed to facilitate these incretions [sic]
Specifically, the applicant requested the following:
"All and any documents emanating from an outside source including the offices of any Government department or produced internally whether with legal effect or by way of management instruction or mandate, which are or were, in any way connected to, or designed to facilitate and bring to fruition the transfer, sale or any transaction between any entity and more particularly a financial institution to a third party, the registration of ownership by way of charge, note or any recognition what so ever over a folio charged with an already existing instrument number under which the Property Registration Authority or The Land Registry so acted."
In a decision dated 4 October 2023, Tailte Éireann said that the authority for it to register the transfer of charges is provided for in legislation. It said, section 64 of the Registration of Title Act, 1964 provides that the registered owner of a charge may transfer the ownership of a charge and that the transferee shall be registered as owner of the charge. It also said that this section further provides that the instrument of transfer shall be in the prescribed form, or such other form as may appear to Tailte Éireann sufficient to transfer the charge. In its decision, Tailte Éireann directed the applicant to records available online relating to the transfer of charges, providing links to (i) Section 64 of the Registration of Title Act 1964 (ii) The prescribed of Form of Transfer, and (iii) the Practice Direction relating to Bulk Transfer of Charges.
On 24 October 2023, the applicant sought an internal review, outlining why he believes further records exist, other than those that are publicly available. On 15 November 2023, Tailte Éireann affirmed its original decision. Tailte Éireann said it was handling cases in relation to bulk transfer of charges which was provided for in the legislation, albeit the number of charges and folios affected was considerably larger than the norm. On 18 December 2023, the applicant applied to this Office for a review of the decision.
During the course of this review, the applicant provided this Office with records which he contends to show that further records may exist beyond those that are publicly available. In light of this, the Investigating Officer provided Tailte Éireann with a summary of the applicant's submissions, and invited it to comment. Tailte Éireann subsequently advised this Office that it had located a number of additional records it believed were 'tangentially' relevant to the applicant's request.
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 outlined above and to the submissions made by both Tailte Éireann and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
As noted above, the applicant believes that further relevant records should exist, other than those publicly available. Tailte Éireann's position is that no further relevant records exist that come within the scope of the applicant's request. 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 Tailte Éireann was justified in refusing access, under section 15(1)(a) of the Act, to any further records coming within the scope of the applicant's request.
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 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.
In his submissions to this Office, the applicant explained that his main focus was records which related to bulk transfers of charges. He stated that whilst he accepted that the Registration of Title Act 1964, Section 64, provided for the transfer of a charge from one entity to another, it only referred to a transfer of charges in the singular. The applicant said that he found it hard to believe that there was no guidance, or records in general, which existed that addressed the increase from single charge transfers to 'bulk' transfers, which Tailte Éireann itself described as "(the) number of charges and folios affected were considerably larger than the norm." The applicant contended that if Tailte Éireann had increased the number of charges being transferred quite considerably, it was reasonable to believe that Tailte Éireann staff members would have been given some guidance on how to carry out these larger 'bulk transfers' of charges transactions. He stated he did not accept that the only record which Tailte Éireann held in relation to what he believed to be a marked increase in the number of transfers being conducted was the practice direction published on its website.
In its initial submissions to this Office, Tailte Éireann maintained that it holds no records relating to the applicant's request, beyond those identified in its original decision. Tailte Éireann restated that it believed the applicant's request implied that Tailte Éireann had been asked to start accepting transfers of charges, whereas its position is that it already had the authority- provided for in legislation- to accept such transfers.
Tailte Éireann stated that it had carried out searches for records relating to 'bulk transfer of charges', and no records had been found. It said it searched its digital repository, which is a collection of the files from all previous Chief Registrars, using key words 'bulk transfer of charges'. Tailte Éireann also stated that its Records Management System which holds non-registration records such as financial and corporate files was also searched, and again no records were found relating to bulk transfer of charges. Subsequently, Tailte Éireann stated that its final position was that reasonable searches had been conducted and no further records relating to the applicant's request existed.
The Investigating Officer contacted Tailte Éireann to clarify aspects of the search details provided. In particular, the Investigating Officer sought to ascertain how Tailte Éireann had understood the scope of the applicant's request. In both its decisions, as well as its initial submissions to this Office, Tailte Éireann stated that the applicant's appeal "implied that Tailte Éireann were asked to start accepting transfers of charges, but the legislation already allowed for this." The applicant stated he accepted that Tailte Éireann had the authority to carry out transfers, and reiterated that his request was for all records relating to this process. Therefore, the Investigating Officer queried whether Tailte Éireann had narrowed the scope of its searches to records solely relating to its authority to carry out transfers, or whether Tailte Éireann had conducted searches for all records relating to the bulk transfer of charges, including emails, meeting minutes, practice directions, correspondence to and from other Departments, etc. Tailte Éireann stated that when searches were carried out it was looking for all of the above-mentioned types of records- and did not narrow its search solely to records relating to the authority of Tailte Éireann to carry out transfers of charges.
The Investigating Officer also sought to clarify whether any records of the type the applicant was requesting would typically be created in cases such as this. Specifically, the Investigating Officer queried whether any guidance or instructions would have been created and circulated to staff in light of the fact the transfer of charges was considerably larger than normal. Tailte Éireann stated that because the process for transferring charges remained the same, and it was only the volume of transfers that changed, there was no need for any practice directions or guidance to be issued to staff- beyond the publicly available practice direction on its website. Tailte Éireann stated that no records existed relating to internal guidance or correspondence to staff regarding this increase in transfers.
In submissions to this Office, the applicant provided details about the transfer of a large number of charges relating to one financial institution. The applicant contends that the activities of Tailte Éireann in regard to carrying out its functions would also have involved a variety of other banks and or financial institutions and Hedge Funds. In his submissions, the applicant provided a copy of a number of records to support his belief that Tailte Éireann holds further records in relation to his FOI request. Some of the records provided by the applicant were internal emails from Tailte Éireann staff members discussing particular transfers, some were external letters to and from Tailte Éireann and a named legal firm regarding a particular bulk transfer of charges, and some were general records relating to bulk transfers. I note that while the records concern transfers of charges, they do not specifically describe these transfers as "bulk transfers".
The Investigating Officer sought further submissions from Tailte Éireann in light of the applicant's submissions to this Office. In response, Tailte Éireann said that it had found a number of additional records which it believed are 'tangentially' relevant to the applicant's request. It stated that these records had not originally been considered as falling within the scope of the applicant's request. Tailte Éireann said that after reviewing the additional queries raised by the Investigating Officer, it became apparent that some records may exist. Tailte Éireann said that "had the requester provided the additional information in the original FOI request and appeal, the information could have been retrieved and considered."
Tailte Éireann said that these records were located by its Deputy Registrar, upon conducting searches for a Project 'X' which had been highlighted by the applicant in his submissions to this Office. Whilst Tailte Éireann stated it had found no records in relation to Project 'X', it stated it had been able to identify a number of additional records relating to a substantial bulk transfer of charges which had occurred involving a named bank. It said that these records include lists of folio numbers unrelated to the applicant. In relation to the records it located during this review, Tailte Éireann said that it considers the records are exempt under sections 29(a), 29(b) and 37 of the FOI Act.
It is important to note that the FOI Act provides for a right of access to records held by FOI bodies. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. It is also important to note that the test in section 15(1)(a) is whether searches have been reasonable. This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.
I have had regard to the submissions made by Tailte Éireann including the search details and the reasons it concluded that no further records exist. I note in particular that it carried out searches using the search term 'bulk transfer of charges' and said that no records were located. However, I also note that Tailte Éireann subsequently located records based on the information provided by the applicant concerning the transfer of charges relating to a particular financial institution, albeit that it considers these records are only 'tangentially' linked to the applicant's request. Given the location of these records during the course of the review, I cannot accept that all reasonable searches were undertaken to locate the records sought by the applicant. I note that Tailte Éireann considers these records are exempt under sections 29 and 37 of the FOI Act. In the circumstances, I find that Tailte Éireann was not justified in refusing access to further relevant records on the basis of section 15(1)(a) of the FOI Act and I direct it to make a fresh decision on the matter.
While the applicant's request may be related to the terminology referred to as 'bulk transfer of charges', it appears from the records that were located during the course of this review that broader searches terms may be necessary in order to ascertain whether further relevant records may exist. I note too, that while Tailte Éireann located records relating to the transfers highlighted by the applicant in his submissions to this Office, the applicant also considers that relevant records may exist in relation to bulk transfers involving other financial institutions. In carrying out a fresh decision-making process, I would encourage Tailte Éireann and the applicant to discuss the specific scope of the request and the type of records in existence to ensure that the parties are clear about what is being sought. I believe it would also benefit both parties for Tailte Éireann to clarify at the outset whether the applicant is seeking a copy of those records it located during the course of this review, which it contends to be tangentially relevant to his request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tailte Éireann's decision. I find that it was not justified in refusing access to further records coming within the scope of the applicant's request under section 15(1)(a) of the FOI Act on the basis that no further records exist or could be found.
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