Decision
Mr Ken Foxe, Right to Know CLG and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-157224-Z0F1D4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157224-Z0F1D4
Published on
Whether the IPS was justified, under section 15(1)(a) of the FOI Act, in refusing correspondence between the IPS and the Minister/Department of Justice about overcrowding and temporary release on the ground that no such records exist
27 August 2025
In a request dated 4 November 2024, the applicant sought access to all correspondence between the Director General of the IPS (or her Office) with Minister Helen McEntee, the Secretary General of the Department of Justice, or the senior official in the Department of Justice with overall responsibility for prison policy, for the period from 1 January 2024 to the date of the request.
In a letter dated 15 November 2024, the IPS notified the applicant that it considered his request for “all correspondence” to be voluminous and said that it would not be able to process the request in its current format. The IPS suggested that the applicant revise the scope of his request by narrowing it to specific named topics. On 5 December 2024, the applicant agreed to narrow the scope of his request to correspondence relating to overcrowding and temporary release. On 31 January 2025, the applicant requested an internal review of the IPS’s deemed refusal of his request as it did not issue a decision within the timeframe proscribed in the Act. On 5 March 2025, the IPS refused the request under section 15(1)(a) of the Act on the basis that there is no relevant correspondence. On 6 March 2025, the applicant applied to this Office for a review of the IPS’s decision, arguing that that is not plausible for there to be no records relating to his request.
During the course of this review, the IPS located records sought by the applicant and released records to the applicant with redactions. It said it was refusing certain information under sections 32(1)(a) and (b) of the Act. The applicant subsequently informed this Office that he wants to proceed to a decision and said that records released to him are heavily redacted.
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 as outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
While the IPS located and released certain records (with redactions) during the course of this review, this review is concerned solely with whether the IPS was justified in its decision to refuse the applicant’s request under 15(1)(a) of the Act.
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 its submissions to this Office, the IPS said it interpreted the applicant’s revised request to mean that the request was for correspondence between the named individuals in relation to policies on overcrowding and temporary release. The IPS said that upon receipt of the applicant’s revised request, it carried out searches for correspondence between the named parties relating to overcrowding and temporary release policies. The IPS said that correspondence between the relevant parties would ordinarily be created by email or on its eCorrespondence platform. The IPS said that searches were carried out of the email account of the Director General and the email account of the Office of the Director General for correspondence between the Minister, the Secretary General or the senior official in the Department of Justice in relation to overcrowding and temporary release policy. The IPS said there would be no other storage locations for these types of records. The IPS said it used the search terms “Overcrowding Policy,” “Temporary Release Policy,” “Minister,” “Helen McEntee,” and “Secretary General” to identify records. The IPS said that the records sought never existed.
This Office’s Investigating Officer subsequently requested clarification from the IPS on the search details it provided. In response, the IPS stated that, upon further review, it had identified records between the Director General and the Deputy Secretary in the Department in relation to overcrowding that it now believed to fall within the scope of the request and was reviewing further correspondence between the relevant individuals relating to temporary release which may also fall within the scope of the request. On that basis, the IPS concluded that it was appropriate to issue a new decision to the applicant and to release records relating to the request, which it duly did.
After receiving records from the IPS, the applicant noted that certain correspondence attached to emails had not been released by the IPS. The Investigating Officer asked the IPS about these records. The IPS subsequently part-granted access to these records, refusing certain information contained in these records under sections 32(1)(a) and 32(1)(b) of the Act. The applicant disputes the redactions made by the IPS.
As noted above, the IPS refused the applicant’ request under section 15(1)(a) of the Act on the basis that no relevant records exist. The applicant made his application for review to this Office based on the IPS’s decision that no records exist. Section 15(1)(a) of the Act requires that a public body take all reasonable steps to locate the records sought. It is evident in my view that the IPS did not carry out adequate searches for the records when processing the applicant’s request in the first instance.
During the course of this review and in response to inquiries by the Investigating Officer, the IPS subsequently located relevant records. I do not consider it appropriate to simply direct the release in full of the records that the IPS located during the course of this review, in circumstances where the IPS argues that certain parts of those records are exempt from release. I also do not consider it appropriate that this Office should effectively act as a first instance decision-maker to determine what information, if any, qualifies for exemption. As a general rule, where an FOI body locates records during the course of a review, this Office will bring the review to a close without a determination on the question of access to those records. In my view this is the most appropriate course of action in this case. This will allow the IPS to make a new decision under section 13 of the FOI Act on the question of access to the records sought by the applicant. The applicant will have a right of internal review and, in turn, review by this Office if he is unhappy with the IPS’s decision.
In the circumstances, I simply cannot find that the IPS undertook all reasonable steps to locate all relevant records when processing the applicant’s FOI request. As such, I find that the IPS was not justified in refusing the request under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IPS’s decision to refuse the applicant’s request under section 15(1)(a) of the Act and I direct it to conduct a fresh decision-making process on 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.
Richard Crowley
Investigator