Decision
Mr D and Department of Foreign Affairs
From Office of the Information Commissioner (OIC)
Case number: OIC-145686-L9B2F4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145686-L9B2F4
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the 2014 Act, to any further records relating to the applicant’s promotional probation period
1 May 2024
In 2022, the applicant was promoted to a new role in the Department of Foreign Affairs (‘the Department’) via a Public Appointments Service (PAS) open competition. His performance in the role was assessed as part of the probationary process for the Civil Service. The outcome of the probation process was that his line-manager found that he did not meet the required standard of performance to be established in the role. The applicant does not agree with the Department’s assessment of his performance.
On 19 June 2023, the applicant made a request to the Department for all written and electronic records relating to his probationary period and the decision not to establish him in the promotional role. On 7 July 2023, the Department decided to grant access to all 150 records it identified as relevant to the applicant’s request. On 26 July 2023, the applicant sought an internal review of the Department’s decision of his request. The applicant said he was surprised at the relatively small number of records from his line-manager during the period of his probation assessment.
On 23 August 2023, the Department released 10 further records that were located by a staff member who was unavailable during the original processing of the request, with the redaction of references to an individual other than the applicant. It said it had not included records of direct communication from or to the applicant other than what was submitted by his line-managers. It said the provision of the additional material was an addendum to the original decision and did not affect his right of appeal. The applicant confirmed that he required an internal review of the Department’s decision. In a further email dated 24 August 2023, the applicant noted that he did not receive the Human Resources Division (HR) record of discussions with his line-manager that were referenced in certain specified emails.
On 8 September 2023, the Department released 11 additional records located following further searches. The Internal Reviewer said he had not included records of direct communication from or to the applicant. On 24 January 2024, the applicant applied to this Office for a review as he was of the belief that other records relating to his request may not have been released to him.
During the course of the review, the Department provided a detailed submission to this Office outlining the searches conducted for records relevant to the applicant’s request. The applicant was provided with details of the submissions made by the Department and invited to make further submissions, which he duly did.
I have now completed my review in accordance with section 22(2) of the 2014 Act. In doing so, I have had regard to the correspondence exchanged between the parties as referenced above, to the applicant’s comments in his application for review and to the submissions made by the applicant and the Department. I have also considered the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The Department’s position is that all relevant records have, at this stage, been released to the applicant and no further records can be found or exist. This is, in essence, a refusal to release any other relevant records under section 15(1)(a) of the 2014 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 in refusing, under section 15(1)(a), any further relevant records.
I note that the applicant has raised no issue with the Department’s position that it did not include records of direct communication from or to the applicant. Accordingly, I will give no further consideration to such records.
In his submissions to this Office, the applicant expressed concerns about the manner in which his request had been processed. While the applicant’s apparent frustration with what he clearly regards as the piecemeal release of records in this case is understandable, it should be noted 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. This review has been undertaken in accordance with the provisions of section 22(2) of the Act and is concerned solely with a review of the decision taken by the Department on his FOI request.
Section 15(1)(a) – whether reasonable searches conducted
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. The role of this Office 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 consideration is given by this Office to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his/her decision and an assessment is made of 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. It is important to note that the 2014 Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office may find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
As noted above, during the course of this review, the Investigator provided the applicant with details of the Department’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist outside of those granted nor could further records be found. The Department said comprehensive searches were carried out of its electronic systems, including emails relating to the applicant’s probation period. It said all relevant individuals in each of the relevant departmental Divisions pertaining to the applicant’s request were consulted and requested to search for relevant records. It said the relevant officials searched their emails and document libraries, HR examined the physical file and Corporate Services - Information and Communication Technology Division (ICT) accessed electronic files of a former departmental official. It said its HR complies with the prevailing retention of records policy and its position is that all records discovered after comprehensive searches, were released. It said it is not the Department’s position that there are records that no longer exist. It said that at no point did departmental officials search for a relevant record, find any such record and decline to release it to the applicant. In its submissions to this Office, the Department outlined the following searches carried out and relevant records released:
Records released with original decision
The Department said staff members in HR and the relevant line Division were requested to search for relevant records in response to the applicant’s request. It said electronic searches of records were conducted with the assistance of ICT. It said ICT also facilitated access to a dormant email account to conduct further searches. It said these searches discovered 150 records and all such records were released to the applicant on 7 July 2023. The Department said records that it believed or knew to be already known to the applicant - such as correspondence sent by the applicant, to the applicant, or copied including the applicant were not included in the set of records released.
Records released as an addendum
The Department said a staff member who was unavailable and without access to documents during the timespan of the original request provided 10 additional documents on his return. Those records were provided to the applicant on 23 August 2023.
Records released at internal review
Having regard to the applicant’s concerns that that he did not receive the HR record of discussions with his line-manger that were referenced in certain specified emails, the Department said staff members in HR and the relevant line Division were asked to carry out additional searches for relevant records. It said that 11 additional records were located as a result of those searches.
In relation to the references in the emails identified by the applicant, the Department said the relevant staff members were contacted and these staff members confirmed they had no such records.
Second Request
The Department said that separately, the applicant sought records of correspondence between the Employee Assistance Officer and departmental staff relating to his case. The Department said the individuals mentioned were contacted and asked to carry out searches, along with a search of older drives by ICT. It said no relevant records were located and that the Employee Assistance Service advised that it would not share records with the Department if, indeed, any such records were retained by it.
Findings
Following receipt of the details of the Department’s submissions, the applicant made further submissions, wherein he essentially outlined his concerns relating to the manner in which his request had been processed. However, in relation to the steps the Department took to locate relevant records, he simply said he could not know where all documents had been provided to him as he does not have access to the relevant departmental records. He provided no further evidence that might support a claim that other relevant records should exist or that other relevant searches should have been undertaken.
The question I must consider is whether the Department has, at this stage, taken all reasonable steps to ascertain the whereabouts of records falling within the scope of the applicant’s request. Having considered the Department’s submissions, and in the absence of evidence to suggest that further specific steps should have been taken, I am satisfied that it has. Accordingly, I find that the Department was justified in its decision to refuse to release additional records on the basis of section 15(1)(a) of the 2014 Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the 2014 Act, to any additional records coming within the scope of the applicant’s request other than those released to date on the basis that no further records exist or can be found.
Section 24 of the 2014 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.
Stephen Rafferty, Senior Investigator