Decision
Mr X and An Bord Iascaigh Mhara
From Office of the Information Commissioner (OIC)
Case number: OIC-147927-X7R0Z6
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URL: http://www.bailii.org/ie/cases/IEIC/2024/147927.html
Cite as: [2024] IEIC 147927
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Whether BIM was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to a bank loan guarantee on the applicant's fishing vessel, on the basis that no further records exist or can be found after all reasonable steps were undertaken to locate the records
16 August 2024
On 13 September 2023, the applicant made an FOI request to BIM for records relating to a guarantee agreement between BIM and Bank of Ireland (BOI) and him which relate to a loan on his fishing vessel. The applicant also sought a range of other records, including all correspondence regarding his fishing vessel between BIM and BOI, BIM and the Merchant Shipping Office in Galway, BIM and the Department of Agriculture, Food, and the Marine, and BIM and the Registrar General of Fishing Boats and Licensing Authority. On 11 October 2023, BIM refused the applicant's request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found.
On 12 October 2023, the applicant applied for an internal review of BIM's decision, providing correspondence concerning a bank mortgage over his vessel that references BIM. On 2 November 2023, BIM affirmed its original decision. It recommended the applicant make a Data Access Request to the bank in question. On 28 March 2024, the applicant applied to this Office for a review of BIM's decision. He said BIM were guarantors on a loan he had with the bank and provided documentation relating to the matter.
On 25 June 2024, BIM wrote to the applicant and released a number of records to him which it located during the course of this review. BIM provided the applicant with a schedule of the records and said that two records were refused under section 31 of the FOI Act as they contained legal advice and that some information had been redacted from two records as it is not relevant to his request. The Investigating Officer contacted the applicant after BIM had released the records referred to above. While the applicant noted he had received some documents from BIM, he said that he did not receive a copy of the guarantee between BIM and the bank or a copy of all correspondence between BIM and the bank. He made no comment about the information which BIM had redacted from the records released to him. The Investigating Officer subsequently provided the applicant with details of BIM's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 BIM and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether BIM was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records between BIM and BOI relating to a loan guarantee on the applicant's fishing vessel, on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to locate them.
Before I address the substantive issue in this case, I wish to make a couple of preliminary comments.
Firstly, it is important to note 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 be 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 or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, it is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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.
As noted above, BIM provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. 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.
BIM stated that searches for records relevant to the applicant's request were undertaken both internally by BIM staff and externally, by BIM's legal advisors. At the outset, it is important to note that BIM have accepted that a guarantee existed regarding the applicant's fishing vessel and BIM. However, its position is that the hard copy file which would have held a copy of this guarantee cannot be found.
In its submissions to this Office, BIM said that during the course of this review, it identified and released a number of electronic records which were deemed relevant to the applicant's request. BIM said that while a number of electronic records were located, the hardcopy file(s) have not been found despite extensive searches.
Electronic searches:
BIM stated that it requested its IT services to undertake a search of all electronic records held by BIM. The key search terms used were "all records with the named fishing vessel in the Subject/Content." Additionally, BIM said it instructed its IT section to search for any emails with the named fishing vessel in the Subject/Content that were between, to, or from a list of individuals. BIM said its IT were given a list of 5 external staff member names, and 7 internal staff member names which the FOI Officer deemed as relevant to the case, and said its IT section were instructed to search for any emails with the named fishing vessel in the Subject/Content that were between, to, or from these lists of individuals. BIM said all relevant records found during this search were outlined in the schedule of records provided to the applicant.
Hardcopy searches:
In submissions to this Office, BIM stated that all records relating to bank guarantees on vessels are located in two filing cabinets located in the office of the Director of Corporate Services. It stated that these files are held by vessel name. BIM said a folder was found that was titled the named fishing vessel in question, however the file was missing from the folder. BIM stated that all files in this location were searched to ensure that the relevant file had not been misfiled, but no file was found. BIM stated that it would appear that through an anomaly the file had been removed and not returned to its location.
BIM stated that during the electronic search for records, a number of individuals who had at some stage had access to the hardcopy file relating to the applicant's vessel were identified, as well as likely areas where relevant files may be held. Subsequently, further physical searches were carried out at the known locations where these staff members would ordinarily have kept their files stored. No relevant hardcopy files were found. BIM also said that manual searches were conducted by vessel name and vessel owner for any file relating to Bank Guarantees. BIM stated that during the course of these searches, a former BIM employee who has since retired was contacted, and that this employee identified two potential additional locations where the relevant named fishing vessel file may have been stored. BIM said these locations were searched and no records were found. Two general archive rooms were also searched, with no records found. BIM stated that these searches were conducted or overseen by the FOI Officer.
In relation to whether relevant individuals were consulted during the searches, BIM said that all key individuals who would have dealt with matters relating to the named fishing vessel in question either no longer work for BIM, have retired, or are deceased. BIM stated that three remaining employees who may have held knowledge relating to the vessel and guarantee were contacted and that these individuals identified some electronic records of relevance which were included in the schedule of records provided to the applicant.
When asked about its record retention and deletion policies, BIM stated that the records would not have been destroyed under any instruction or under BIM's record retention policy. It stated that all other files relating to such bank guarantees have been retained in a central location. BIM stated its position is that the file was removed from the central filing location in order for matters to be addressed and was not returned. BIM stated that despite a thorough search it has not been able to locate the missing file. BIM said the last known communication internally (as provided in the electronic records) in relation to the named fishing vessel was in 2017.
In its submissions, BIM stated that the legal firm which acted as its legal advisors in 2017 when the last known correspondence relating to the named fishing vessel occurred had since gone into administration, and subsequently BIM had appointed a new legal firm as its legal advisors a number of years ago. BIM's files were subsequently transferred from its former legal advisors to its current legal advisors during this process.
As part of the review, the Investigating Officer asked BIM to provide an outline of the searches carried out by its legal advisors, which it duly did. BIM's legal advisors stated they conducted a full search of all BIM files held in its offices, together with all files held in its archives. The firm stated it does not hold any client records at any location outside its offices and its archives. The firm said that it holds 8 boxes of documents which were transferred either directly by BIM's previous legal advisors or by the Law Society of Ireland. It stated these 8 boxes represent all the documents and files it holds. The firm said it conducted manual searches through all of the abovementioned documents and files, and no relevant records relating to the applicant's request were located. It also stated that it has maintained the files as they were received during the handover from BIM's previous legal advisors and the Law Society of Ireland, and stated that it has not destroyed any BIM files or documents.
In summary, BIM stated its position in relation to the applicant's request is that whilst detailed searches have been carried out, and while some electronic records have been located, it is unable to locate any hardcopy files relating to the named fishing vessel and the associated bank guarantee.
In his submissions to this Office, the applicant said that when he received the records from BIM, he asked that they contact BOI and request a copy of the guarantee and all relevant documents, which he contends they are entitled to do. The applicant believes BIM's failure to request the records from the bank is a form of concealment. The applicant asked that this Office instruct BIM to contact the bank and request a copy of the guarantee in question.
As the Investigating Officer explained in her correspondence with the applicant, this Office has no powers to instruct BIM to request a copy of the loan guarantee, or other relevant records, from the bank. While there is a provision in the FOI Act where records held by a service provider are deemed to be held by an FOI Body for the purpose of the FOI Act, this does not arise in this case. Section 11(9) of the FOI Act provides that a record in the possession of a service provider for an FOI body, and that relates to the service provided, is deemed to be held by the FOI body for the purposes of the FOI Act. "Service Provider" is defined in section 2(1) of the Act as "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person." It is evident in my view from the definition above that the bank is not a service provider for the purposes of the FOI Act. I am satisfied that any agreement that BIM may have with the bank as guarantor to the applicant's loan does not fall within the meaning of a service provider in the context of the FOI Act. Consequently, I am satisfied that any relevant records that may be held by the bank, are not deemed to be held by BIM for the purposes of the FOI Act. Accordingly, whether BIM, as the applicant suggests, ought to request a copy of relevant records from the bank is not a matter for this Office.
I appreciate that the applicant will be disappointed that BIM cannot locate the missing file concerning his fishing vessel. However, it is possible - and it is clearly envisaged by the FOI Act - that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. It is important to note that where and FOI body refuses a request for records under section 15(1)(a) of the FOI Act, the question I must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of the relevant records. 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.
In conclusion, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that BIM has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records exist or can be found. I find that BIM was justified in refusing access to further records relating to his 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.
Finally, in the event that the missing file or further records falling within the scope of the applicant's request are located by BIM at some point in the future, I would expect BIM to make those available to the applicant. If, for any reason, BIM were to decide that such records could not be made available, I would expect it to deal with the matter on the basis of a new FOI request from the applicant as this would guarantee the applicant's right of appeal to our Office, should he wish to appeal.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm BIM's decision to refuse access to further records sought by the applicant under section 15(1)(a) of the FOI Act.
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