Decision
Mr D and Department of Agriculture, Food and the Marine ("the Department").
From Office of the Information Commissioner (OIC)
Case number: 130290
Published on
From Office of the Information Commissioner (OIC)
Case number: 130290
Published on
Whether the Department was justified in its decision to refuse access to records relating to the applicants application to it under the Single Payment Scheme under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
18th March 2014
The applicant made a request on 28th August 2013 to the Department for "All SPS (Single Payment Scheme) Amendment forms submitted from 20th May 2009 to 1st December 2010. In addition the applicant sought access to notes taken by members of staff from the Department as well as documentation supplied to the Department during the course of visits by the applicant to their offices in Portlaoise in June and August 2010. The applicant sought an internal review on 2nd October 2013 on the basis that the Department had failed to meet the deadline for response and as such the original request was deemed to be refused. In its Internal Review decision of 21st October 2013 the Department stated that it had released documentation supplied to it by the applicant in October 2010 on foot of a previous FOI request and that access was refused to notes taken by staff during the visit of the applicant to the offices of the Department in June and August 2010 on the basis of section 10(1)(a) of the FOI Act. The applicant was not satisfied that all relevant records held by the Department had been released to him and as such applied to this Office for a review on 20th November 2013.
I note that Mr David Logan of this Office informed the applicant on 7th February 2014 of his preliminary view that the decision of the Department was justified. The applicant did not accept Mr Logan's views and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
This review is concerned solely with the question of whether or not the Department was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Section 10(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
In a submission to this Office of 9th January 2014 the Department outlined the processes surrounding the receipt of such documentation from applicants as well as the searches carried out in order to locate the records requested. The applicant states that he delivered documentation to the offices of the Department in Portlaoise by hand in June and August 2010. The Department state that in cases such as this all hard copies of amendment forms are taken in by staff in a reception specific for SPS amendment forms and are sent through the internal post system to the section responsible for dealing with these forms. On receipt this documentation is scanned onto the SPS System thereby creating an electronic record of the hard copy file. All files are categorised by herd number and a particular individual may have a number of separate files relating to different herds. The hard copies of the forms are then included on the file related to the particular individual. With regard to the searches carried out to locate the records requested by the applicant the Department states that hard copies of the 2009 and 2010 SPS files of herds attached to the name of the applicant and related electronic files opened on the SPS system were searched. Other SPS Files relating to herds associated with the applicant were also searched. With regard to notes taken by staff during the course of the visits by the applicant to the Department's offices in June and August 2010, the decision maker spoke to the staff members who dealt with the applicant and he stated that they did not retain written notes of such contacts nor did they recall receiving documentation during the course of these contacts.
Where there are two conflicting views on the same matter, this Office is limited to reviewing the evidence provided by the parties to the review to ensure that the exemptions provided for in the FOI Act have been applied correctly by the public body in question. In this particular case, having considered the evidence provided by the applicant, I find that it has not displaced the Department's contention that it cannot locate any further records appropriate to his FOI request. This is not to say that I doubt the applicant's contention that he had delivered records on the dates in question, it is simply that I do not have evidence to displace the contention of the Department that, in the context of its record management systems and having interviewed relevant staff members who dealt with applicant on his visits to the office, it cannot find the records at issue. Accordingly I am satisfied that it has taken all reasonable steps to locate all such records and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator