Decision
Mr X and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-99336-R0C2N5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-99336-R0C2N5
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant other than those released when processing the request and located and released during the course of the review
26 April 2021
In a request dated 6 August 2020, a public representative acting on behalf of the applicant submitted a request to the Department’s Reception and Integration Agency for all internal and external correspondence received and/or sent by the Department in relation to the applicant from 1 November 2019 to 10 August 2020. As the Department failed to issue a decision within the statutory timeframe, the public representative sought an internal review of the deemed refusal of the request on 24 September 2020.
As the Department also failed to issue its internal review decision within the statutory timeframe, the applicant sought a review by this Office of the Department’s refusal of his request on 23 October 2020. Following correspondence with this Office, the department issued a later internal review decision on 5 November 2020, wherein it decided to part-grant the request. Of the 16 records it identified as coming within the scope of the request, it granted full access in full to four records and partial access to the remaining records, with redactions under section 37 of the Act. On 6 November 2020, the applicant informed this Office that he wanted the review to proceed as he was not satisfied that he had received all relevant records.
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 between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the review, the applicant confirmed that he was not seeking a review of the Department’s decision to withhold certain information from the records it identified as coming within the scope of his request. Instead, he argued that the Department had not identified all relevant records. Accordingly, this review is concerned solely with whether the Department was justified in refusing access to any further relevant records relating to the applicant on the ground that no such records exist or can be found.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In an email of 16 November 2020 to this Office, the applicant identified certain categories of records that he was seeking, including his communications with a number of named officials. In its submissions to this Office dated 3 December 2020, the Department said it identified a number of relevant text messages following its consideration of the information provided by the applicant and released them to the applicant. It added that as one of the officials named by the applicant was away from the office and was not due to return for the foreseeable future, his phone could not be checked for records. It suggested, however, that the applicant would have copies of such texts, if they exist. It provided details of the searches undertaken on foot of the request.
The Department argued that the general nature of the request left it without clarity as to what documents or records the applicant believes have been withheld or are missing from the documents released. It argued that the relevant section within the Department made a full and honest effort to identify and release documents that fall under the request and had dedicated significant time and effort in doing so. If said if it was made aware of a specific record that had been overlooked, it may be in a better position to locate it.
This office provided the applicant with details of these further searches undertaken by the Department. In a response dated 15 December 2020, the applicant provided additional details that might help the Department in locating relevant records. Amongst other things, he provided refined dates for possible email exchanges, meetings and telephone conversations, and two email addresses. He also questioned the appropriateness of the Department’s failure to check for text messages due to a staff member’s absence.
Following its consideration of the further information supplied by the applicant, the Department made a further submission to this Office on 29 January 2021, in which it indicated that a search using one of the email addresses provided uncovered one further record, a copy of which was released to the applicant.
On the matter of the absent staff member, the Department said the staff member is on long term leave and at this time it is not possible for him to search through his emails and texts. It said the relevant unit has since transferred from the Department to the Department of Children, Equality, Disability, Integration and Youth. It said the staff member returned his laptop and tablet to the Department and has not been issued with any hardware by the new department to date. It argued, therefore, that the staff member does not currently have the capacity to carry out any searches for such documents.
This Office provided the applicant with details of these responses from the Department, following which the applicant indicated that he was not satisfied that all relevant records had been located. He provided further information relating to his engagements with the Department.
The Investigating Officer wrote again to the Department on 19 February 2021, seeking further details of the searches carried out. In its response of 26 February 2021, the Department said it had carried out searches on the relevant systems using the email addresses provided by the applicant and his name and that no further records could be found. It noted that the Investigating Officer had raised a number of other queries to which it said it would respond in due course.
Subsequently, on 10 March 2021, the Department informed this Office that a further electronic search had been carried out of the mail account of its absent staff member following which 59 records were located, all of which it released to the applicant in full. It noted that some of the 59 records had previously been released during the processing of the request.
In a follow-up email dated 30 March 2021, the applicant expressed concerns about the manner in which the Department had dealt with his request to date. He noted that he had been advised previously that emails from a named staff member had been searched and released to him but that it was now clear to him from the release of these 59 documents that he had not been issued with the true facts in relation to the documents and believed it raised a number of other issues. However, it must be noted that the applicant did not offer any further supporting information to suggest that the Department holds further relevant records other than notes of meetings, and this matter had been addressed in earlier correspondence and an explanation provided as to why these did notes of meetings did not exist.
I do, however, fully accept and agree that the manner in which the Department processed the applicant’s request and the manner in which it engaged with this Office during the review has been wholly unsatisfactory. It is entirely understandable that the release of records in such a piecemeal way would cause the applicant to question whether he has, at this stage, been provided with all relevant records. It was incumbent on the Department to carry out all reasonable steps to ascertain the whereabouts of relevant records when processing the request. I am satisfied that one such step the Department should have undertaken when processing the request was to carry out an electronic search of the records of the absent staff member, thus preventing further correspondence and unnecessary delays.
Nevertheless, it seems to me that at this stage, the Department has now taken all reasonable steps in an effort to locate the records coming within the scope of the applicant’s request. In arriving at this conclusion, I note that no further evidence has been presented to support the applicant’s contention that Department might hold further relevant records. It is important to note that the role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records.
The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. This Office may conclude that an FOI body has taken all reasonable steps to locate relevant records even where records were known to have existed but cannot be found. The Act does not require an FOI body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.
I find, therefore, that the Department is now justified in finding that no further relevant records exist or can be found, having taken all reasonable steps to ascertain their whereabouts.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to further relevant records coming within the scope of the applicant’s request, apart from those released when processing his request and subsequently during the course of the review.
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.
Stephen Rafferty
Senior Investigator