Decision
Mr Y and An Garda Síochána
From Office of the Information Commissioner (OIC)
Case number: OIC-135614-B4L1R2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-135614-B4L1R2
Published on
Whether AGS was justified in refusing access to further records sought in relation to two competitions for the allocation of a member to official accommodation at a Garda station in County Galway, on the basis that they do not exist or cannot be found
16 May 2023
In a request dated 28 June 2022, the applicant sought access to records relating to two competitions held in 2018 and 2020 for the allocation of official accommodation at a particular Garda station in County Galway. In a decision dated 20 July 2022, AGS part granted the applicant’s request. It released a number of records in full or in part, with certain information redacted under Schedule 1 Part 1(n) and section 37 of the FOI Act. Following a request by the applicant for an internal review, AGS released several additional records, in full or in part, to the applicant. It also affirmed its original decision in relation to the withheld information. On 20 February 2023, the applicant applied to this Office for a review of the decision of AGS, as he was of the view that further records should exist.
During the course of the review and on foot of correspondence from this Office, AGS identified further records within the scope of the applicant’s request. These records were released to him on 9 March 2023 with the exception of certain information relating to third parties, which was withheld under section 37(1).
The Investigating Officer subsequently contacted the applicant and provided him with details of AGS’s submissions wherein it outlined its reasons for concluding that further records relating to his request, other than those already located and released, did not exist. The Investigating Officer also asked the applicant whether, in light of the additional search information and records provided, he was satisfied that AGS had carried out reasonable searches to identify all records within the scope of his request. In his response, the applicant indicated his view that additional relevant records should exist, although he did not provide any further information or evidence in this regard. During the course of this review, the applicant confirmed to this Office by telephone that he was not seeking a review of AGS’s reliance on Schedule 1 Part 1(n) and section 37 of the Act to withhold certain information.
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 AGS in support of its decision and to the applicant’s comments and submissions to this Office. I have decided to conclude the review by way of a formal, binding decision.
AGS’s position is that no further relevant records exist or can be found. This is, essentially, a refusal to grant access to additional 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 AGS was justified in refusing access, under section 15(1)(a) of the Act, to additional relevant records coming within the scope of the applicant’s request.
During the course of the review, the applicant expressed concerns about AGS’s handling of his request for records. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies and/or applicants. Our role is confined to reviewing the decision taken by the FOI body in relation to the applicant’s request.
Section 15(1)(a) of the 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 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.
AGS provided this Office with details of the searches carried out to locate relevant records in this case and its reasons for concluding that additional records do not exist. These details have been provided to the applicant and he has been given an opportunity to comment. While I shall not set out AGS’s submissions or the applicant’s response in full below, I can confirm that I have had regard to all of the submissions made by the parties concerned.
In summary, AGS said that the competition concerned related to the allocation of official accommodation for a specific area in Galway, and that accordingly, it was run by the Garda Western Region Headquarters in Galway. It said that among other offices, the applicant’s request was forwarded to the Chief Superintendent’s Office (CSO) in Galway in an effort to locate relevant records. AGS stated that the CSO was the Office responsible for overseeing the competition in question and that searches were carried out of the relevant areas, namely, the Divisional Business Services Functional Area, the Chief Superintendent’s Office and the Divisional Facilities Office. It said that an electronic search was carried out on shared and personal email accounts, a shared network drive and individual computers, including the email accounts and drives of current and previous staff. AGS said a manual search of physical records was carried out for files titled “[station name] accommodation”.
AGS said that on receipt of the applicant’s request for an internal review, it undertook further searches in the HR Section, Galway division, following which a number of additional records were located and released, in full or in part, to the applicant on 5 August 2022. It also said that, following receipt of a request for submissions from this Office, it reviewed the documents it had received from the local office in relation to the request and located eight pages of emails, which it had inadvertently omitted from the original decision. It said this was an oversight and it apologised for the omission.
As outlined above, the search details submitted by AGS were provided to the applicant by the Investigating Officer. The general thrust of the applicant’s response was that AGS failed in its duty to comply with its obligations under FOI legislation, as further records were released to him on two separate occasions after it issued its original decision. He said he was “still convinced there is outstanding documentation in existence relating to the accommodation applications of 2018 [and] 2020.” In particular, he noted the lack of correspondence between the relevant Sergeant I.C.’s Office and the relevant Divisional Office “which [he] know[s] must exist”. However, when asked to specify what records he believed to exist which had not been identified, the applicant could not provide any further details.
The Investigating Officer put the applicant’s comments to AGS. In response, AGS said that when accommodation becomes available, an expression of interest email is sent to members within the relevant division, and that “the numbers that apply are small”. It noted that there was no interview or exam for those who apply for an allocation of accommodation, rather, after the closing date has passed a decision on who lives in the accommodation is made by the Superintendent. The FOI Officer was of the view that no correspondence or meeting minutes exist in relation to the decision on the allocation of accommodation in this case.
AGS’s position is that all relevant records have now been located and considered for release.
It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether AGS has taken all reasonable steps to ascertain the whereabouts of relevant records.
The piecemeal manner in which AGS released records in this case is unfortunate and understandably caused the applicant to have concerns as to the completeness of the information released. It is also regrettable that AGS did not realise that some records had been withheld in error until the applicant had applied to this Office for a review. However, the fact that further records were located during the course of the review does not prevent me from finding that AGS have now undertaken all reasonable searches to locate relevant records. In this regard, it is important to note that a review by this Office under section 22 of the FOI Act is considered to be de novo, which means that it is based on the circumstances and the law as they apply on the date of the decision.
I note that no further evidence has been presented to support the applicant’s contention that AGS holds further relevant records. It is also 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 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 sought.
I have had regard to AGS’s statement that not many applicants apply for the accommodation concerned. I have also had regard to the content of the records located and released in full or in part to the applicant and to the details of the searches undertaken by AGS. In the absence of evidence to suggest that further specified searches are warranted, I am satisfied that AGS has taken all reasonable steps to locate relevant records in this case. I am also satisfied that AGS has adequately explained why it arrived at its conclusion that no additional records relating the applicant’s request exist or can be found. Accordingly, I find that AGS was justified in refusing, under section 15(1)(a) of the Act, to release additional relevant records on the ground that no further relevant records other than those released originally, or during the review, exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm AGS’s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional relevant records relating to the applicant’s request.
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