Decision
Mr X and Department of Foreign Affairs
From Office of the Information Commissioner (OIC)
Case number: OIC-141075-V8X0D3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-141075-V8X0D3
Published on
Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant
7 May 2024
In a request dated 27 April 2023, the applicant sought access to all records relating to him from November 2021 to date held by the Department. He indicated that he sought all comments or information relating to him, including records concerning his probation, performance, conduct, character and his disability. The applicant indicated that Human Resources (HR) staff, previous managers and senior managers might hold relevant records, but that his request was not limited to these individuals. He finished by stating that he sought the records concerned, preferably, in pdf format.
In a decision dated 30 May 2023, the Department stated that it was granting the applicant’s request. It released 201 records, although it stated that records of direct communications to or from the applicant were not included. It is not clear from the records provided to this Office during the review, but it appears that it also withheld access to some information from the records released relating to other employees of the Department on the basis of section 37(1) of the FOI Act. On 2 June 2023, the applicant requested an internal review of the Department’s decision. He stated that he sought all records relating to him held by the Department and indicated that he believed that additional relevant records existed which had not been released to him.
Records of further correspondence between the parties have been provided to this Office by the Department for the purposes of this review. On 7 June 2023, the Department wrote to the applicant setting out details of the searches undertaken to locate relevant records, among other things. It asked the applicant to confirm by return whether he was satisfied that records of direct communications to or from him continued to be excluded from the scope of his request. It also asked him to provide details as to the records he believed not to have been identified in the Department’s initial searches. On 16 June 2023, the Department followed up as the applicant had not replied. The applicant provided a comprehensive response on 22 June 2023. Among other things, he stated that email threads had been provided by way of screenshots and he clarified that he sought the whole thread of email history and replies, including headings showing the relevant date and time, as well as email attachments in all cases. The applicant also stated that he sought records of correspondence between the Department and various other organisations about him, as well as the details of steps taken to locate or retrieve records which may have been deleted or erased. He also provided details of various individuals and sections which might hold relevant records.
On 26 June 2023, the Department varied its original decision and released 206 additional records located on foot of new searches. It withheld access to some information relating to third parties on the basis of section 37(1). In line with its original decision, the internal reviewer stated that he had not included records of direct communication with the applicant. On 20 July 2023, the applicant submitted an application for review of the Department’s decision to this Office. The applicant stated that further records relating to him should exist. He again queried the release of screenshots of email correspondence instead of complete email threads including attachments. He also suggested that some records may have been deleted.
During the course of the review the Investigating Officer sought submissions from the Department in support of its decision to refuse to release further records. The Investigating Officer also sought clarification from the applicant as to what he records he sought. Both parties provided further submissions to this Office in response and relevant matters were brought to each party’s attention for comment. On foot of queries from this Office during the review, the Department released an additional four records to the applicant. He remains of the view that further relevant records should exist.
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 the Department in support of its decision and to the applicant’s comments in his correspondence with this Office, as well as to the correspondence between the parties as set out above. I have also had regard to the records already released to the applicant. I have decided to conclude this review by way of a formal, binding decision.
In his correspondence with the Department following his internal review request, the applicant stated that he wished his request to cover any information that the Department had or had access to since he made his FOI request. He appeared to be of the view that this included records relating to him, or that could have affected him in any way, from November 2021 until the date of his email on 22 June 2023. I also note that in its submissions to this Office, the Department referred to records created after the date of the applicant’s FOI request. It is well established that the FOI Act provides for a right of access only to records that exist at the time of the request (section 12(1) of the FOI Act refers). Accordingly, I am satisfied that only records relating to the applicant created from November 2021 to 27 April 2023 are within the scope of his request and will be considered as part of this review.
In the same correspondence, on 22 June 2023, the applicant indicated that he was also seeking additional records including copies of various policies and guidelines, the rationale for various decisions made by Department officials, a list of individuals who made decisions which may have affected him, the rationale behind each individual’s decision and any advice including legal advice provided to these individuals in relation to the decisions taken, as well as details of the qualifications and experience of a specified official in the Department. The Department informed the applicant that the majority of the matters set out in his email were either outside the scope of his original request, or outside the parameters of the FOI Act itself. It stated that if he sought access to other records held by the Department which were not within the scope of his original request, it was open to him to make a new FOI request. I am satisfied that this was the correct approach by the Department. In response the applicant sought further information about the review process itself and which records were within scope and under review. I also understand that he made a fresh FOI request on 27 June 2023, although the Department did not appear to process it as such.
In any event, I am satisfied that records relating to policies, guidelines, the rationale for decisions and details of the qualifications of a named official do not come within the scope of the applicant’s original request in this case and will not be considered as part of this review.
The applicant remains of the view that additional records relating to his original request should exist. The Department’s position is that all relevant records have been released, subject to certain redactions under section 37 of the FOI Act, other than correspondence he was a party to, which it says he was notified of and did not object to. This is, effectively, a decision to refuse access to additional records on the basis of section 15(1)(a). The applicant has not sought a review of the Department’s reliance on section 37.
Accordingly, this review is solely concerned with whether the Department was justified in refusing access to additional records relating to the applicant’s request under section 15(1)(a) of the FOI Act, on the basis that no further relevant records exist.
Section 15(1)(a)
The Department’s position is that it released all relevant records in this case, other than those concerning correspondence to which the applicant was a party. The applicant is of the view that the Department holds additional records relating to his request which have not been released. Accordingly, section 15(1)(a) of the FOI Act is relevant. Section 15(1)(a) 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 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 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.
Whether additional records exist
In its submissions to this Office, the Department provided comprehensive details of staff members who had been asked to search for relevant records. It stated that searches were carried out in both electronic and physical locations by its HR and ICT Divisions using the applicant’s name and surname as keywords. Essentially, the Department’s position is that it carried out extensive searches for relevant records and that all records relating to the applicant’s request have been released, other than records of direct communication with him, which it had informed him it did not consider when processing his request. In relation to the email threads captured onscreen, copied into Word and saved in pdf format, while the Department acknowledged the applicant’s comments, it stated that he had not provided any details of which emails or attachments he believed to be missing from the records released. It appears that the Department did take no action in relation to these documents in the absence of clarification from the applicant.
While the applicant said that he had strong reasons to believe that relevant records had been withheld or deleted, as set out, he provided very little specific details to the Department as to what particular records he believed to be missing. However, in his correspondence with this Office, he has queried the absence of additional records relating to the Unit in which he worked, particularly, relating to two named staff members therein; to records relating to the Secretary General’s decision on his probation; and records relating to legal or other advice sought by the Department, as well as instant messages or handwritten notes held by the Department relating to him.
I have carefully examined the records released to the applicant and I am satisfied that they include correspondence from the two named staff members in the specific unit in question. The Department’s position is that the staff member who still works in that unit has carried out thorough searches for relevant records. It also stated that its ICT Section accessed the files of the other named individual who no longer works in the unit and that all relevant records held by this unit have been released.
In relation to records to or from the Secretary General, I am satisfied that some of the records released relate to such correspondence. Furthermore, on foot of queries from this Office during the review, the Department released additional attachments to record 72 (Decision for the Secretary General regarding a probation appeal) to the applicant.
The applicant was of the view that the Department was likely to have sought or received legal advice or advice from other public bodies concerning his probation and related matters. I note that the records released to date refer to internal advice sought from HR in this regard. Furthermore, in response to queries from this Office, the Department stated that as the applicant was reverted to his previous position, rather than dismissed, it did not seek legal advice and that is why no records of legal advice were located relating to his request.
This Office also queried the absence of Instant Messages or handwritten notes relating to the applicant and the Department stated that Instant Messages were automatically deleted after reading. Accordingly, its position was that any messages which may have come within the scope of the applicant’s request no longer exist. The Department also stated that relevant staff were consulted in relation to handwritten notes concerning the requester and none were located.
When given an opportunity to comment on an outline of the Department’s submissions regarding the specific categories of records set out above, the applicant did not accept its position. He indicated that it was “implausible” that records of internal discussions concerning his reversion did not exist. He did not accept that adequate searches had been carried out for handwritten records and contended that the fact that the Department had an automatic Instant Message deletion policy did not mean that relevant messages had been deleted.
While the applicant has made various assertions to this Office in relation to the existence of further relevant records, he has not provided me with any evidence which would support his position. In such circumstances where an FOI body has provided details of searches undertaken and reasonable explanations as to why no further records exist, that would be the end of the matter. However, in this case the Department has acknowledged that it holds further relevant records in this case which were not considered for release, i.e. records of communication with the applicant. In its submissions to this Office, it stated that its HR Division had identified more than 1,000 records within the scope of the applicant’s request, but that the “vast majority” of these were records that the applicant was party to. It stated that it had informed the applicant of its intention not to release these records and that he had not objected. The Department also stated that at internal review stage, it asked the applicant to clarify which records he believed had not been located. Its position is that it did not receive a clear answer from the applicant in response.
I have carefully examined the correspondence between the application and the Department concerning his request, as well as his application to this Office. I note that the applicant has informed this Office that he seeks access to all of the records held by the Department relating to him.
I am satisfied that records of communication between the Department and the applicant, or records where the applicant was copied on correspondence, were within the scope of his original request. It also appears to be the case that these emails may have been sent to his departmental email address, which he could not access once he was reverted. Furthermore, while I accept that the Department clearly notified the applicant on at least three occasions that these records were not included in its consideration of his request, he repeatedly stated that he sought all records relating to him. While I also accept that the applicant did not expressly address the Department’s comments that it had not included records he was a party to in its consideration of his request, it is clear to me that he sought all records and that records of correspondence to which he was a party fall within that description.
Furthermore, as noted above, the applicant had raised an issue concerning the records released as pdf files. In its submissions to this Office, the Department stated that it took additional steps, as outlined above, in order to release the records concerned in pdf format as sought by the applicant. I should state that it seems to me that while the applicant indicated that he sought the records “preferably” in pdf format, it would have been open to the Department to release them in another format, if it was more efficient (section 17(2)(a) of the FOI Act refers). In any event, I am satisfied that the applicant indicated to the Department on a number of occasions that there were issues with the records released in this way.
Among other things, the applicant argued that not all emails had been released in full and that headers/footers were missing. From a review of the records released it seems to me that, in the most part, the “missing” information appears to be on a previous or following page. However, it also appears to me that there are a number of attachments shown in the email threads which are not listed in the records schedules provided. For example, record 30 “Additional Postings 2022” clearly shows an attachment entitled “[applicant’s name] - Application – Third Secretary Postings 2022.docx”. No such document is listed in the records schedule provided. Similarly, record 5 “DAB” shows a number of attachments, including records attached to an email dated 15 December 2022 concerning courses applied for by the applicant, which do not appear to have been included in the records provided to this Office.
In the circumstances, I am satisfied that all records relating to the applicant during the relevant timeframe were within the scope of his request and that it was not open to the Department to exclude them without consultation with the applicant. While the applicant has provided no specific information or evidence in support of his view that additional records relating to the Unit in which he worked, correspondence with the Secretary General about him, legal or other advice sought or received about relevant matters should exist, the Department has acknowledged that additional records relating to his request exist which have not been considered for release. In the circumstances, without examining the additional records held by the Department, I cannot form a definitive view on whether all of the matters raised by the applicant have been addressed.
Based on the above, I simply cannot find that the Department has taken all reasonable steps to locate records within the scope of the applicant’s request in this case. Accordingly, I find that the Department was not justified in relying on section 15(1)(a) to refuse access to additional records relating to the applicant’s request on the basis that they do not exist or cannot be located once all reasonable steps to ascertain their whereabouts have been taken.
I consider that the appropriate course of action at this stage is to annul the Department’s decision in relation to applicant’s request, the effect of which is that it must consider his request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.
The Department should consider all and any records and attachments relating to the applicant and make a new decision on these records under the FOI Act. I would expect the applicant to engage with the Department in terms of the records or parts thereof which he considers to be missing. It may also be the case that many of the records already released have been provided in full and do not need to be considered again. I would urge the parties to engage fully in order to ensure that the applicant’s request can be processed afresh as efficiently as possible.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that it was not justified in refusing to release additional records relating to the applicant under section 15(1)(a) of the FOI Act, and I direct it to undertake a fresh decision making process in relation 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