Decision
Mr Y and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-148006-N6N1S3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148006-N6N1S3
Published on
Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further information relating to a report relating to the applicant prepared by An Garda Síochána (AGS) for the Department, on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
19 July 2024
Prior to submitting his FOI request, the applicant had previously engaged in correspondence with the Department in relation to the record which is the subject of this review. It is our understanding that the applicant had requested an update from the Minister for Justice relating to a specific criminal investigation by AGS. In April 2023, on foot of this request for information from the applicant, the Department asked AGS to provide it with an update regarding the matter. AGS subsequently provided the Department with a report and the Department sent the applicant an email on 12 May 2023 providing him with details of the update it received from AGS. In this email the Department advised the applicant that it had exhausted all possible avenues to assist him, that it does not have a role in the specific matters he raised, and that as it currently stood no further correspondence would issue from the Department to him in relation to the specific matter. On 19 September 2023, the applicant emailed the Department asking for the name and rank of the Garda who provided the information referenced in the Department’s email of 12 May 2023. He also requested a copy of the report from AGS, with the signature of the writer. I understand he received no reply to this email.
In an FOI request dated 14 February 2024 the applicant sought access to a dated copy of the original update report sent by AGS to the Minister for Justice, as well as the name, rank, and number of the Garda who provided the information in the report. On 14 March 2024, the Department released a copy of the report provided by AGS. The Department refused the applicant’s request for the name and number of the Garda who wrote the report under section 15(1)(a) of the FOI Act on the basis that it does not possess this information. The Department noted that the report states it was prepared by a (unnamed) Detective Superintendent from a particular Garda Division. On 22 March 2024, the applicant requested an internal review of the Department’s decision, stating that the record which had been granted to him did not provide the information he requested. Additionally, the applicant raised issue with the fact that the record of the update report released to him did not contain a signature, name or number of the Garda who wrote the report. He also stated that he had submitted the same request to AGS, and the decision he received from AGS differed. On 4 April 2024, the Department affirmed its original decision. On 9 April 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions wherein it explained 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. However, no response was received.
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 the applicant in his application to this Office and by the Department 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 the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the report provided by An Garda Síochána to the Department, and in particular information regarding the author of this report, on the basis that no further relevant records exist or can be found after all reasonable searches have been carried out to locate them.
It is 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.
In submissions to this Office, the Department said that the only record it holds relating to the applicant’s request was released to him with its original decision on his FOI request. The Department said that this record was a copy of the original report which AGS provided to the Department. The Department said that at no point was it provided with the name or number of the Garda who wrote the report. Therefore, the Department stated in its submissions to this Office that having checked and reviewed the update report it is satisfied that no name or number of the author is provided, and subsequently its position is that it holds no records relating to this part of the applicant’s request.
During the course of this review, the Department said it held a cover email sent by AGS to the Department which attached the report. The Department said the email did not contain the name of the Garda member who wrote the report. A copy of the email was provided to this Office. The email in question was sent by an Executive Officer in the Corporate Services Office of Garda Headquarters to the Department of Justice on 25 April 2023 and simply indicates that the information requested by the Department in relation to the applicant was attached. The email contains no details about the author of the report.
In conclusion, the Department’s position is that on receipt of the FOI request the Department released the report it received from AGS in April 2023 to the applicant and informed him in its decision letter that the name of the Garda who prepared the report was not provided to the Department. It noted, as is stated in the report, that the information contained in the report was provided by an unnamed Detective Superintendent in the relevant Garda Division.
It is important to note that the FOI Act does not require a public body to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices (which is not of relevance in this case). Neither does the Act require a public body to answer queries where it does not hold a record that contains the information sought. Furthermore, the FOI Act does not require the Department to seek details about the author of the report from AGS in order to address the applicant’s query in this regard.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records can be found. In the circumstances, I find that the Department was justified in refusing access to further records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to further records relating to the applicant’s request 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