Decision
Mr. S and Department of Justice and Equality
From Office of the Information Commissioner (OIC)
Case number: 130025
Published on
From Office of the Information Commissioner (OIC)
Case number: 130025
Published on
Whether the Department was justified in its decision to refuse access to certain records relating to the applicant's dismissal from the Irish Prison Service under section 10(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
21 October 2014
The applicant submitted an FOI request to the Department on 25 September 2012 seeking access to "all correspondence including medical reports and or medical advice and any other material/advice etc furnished by the Department of Justice and or others to the then Minister for Justice to enable the Government to decide in dismissing [the applicant] from the Prison Service on the 23rd May 1989 including the actual decision/notification of [his] dismissal".
The Department issued its decision on 12 October 2012 refusing the request under section 10(1)(c) of the FOI Act on the basis that the records the subject of the request had already issued to the applicant in response to a previous FOI request (reference number 156/213/2008). On 25 October 2012, the applicant applied for an internal review of this decision, stating that all the information sought was not issued under the previous request. The Department issued its internal review decision on 7 January 2013, in which it granted partial access to a letter dated 14 November 1988 informing the applicant that the Minister had decided to proceed with a recommendation of dismissal to Government. It also indicated that three further relevant records, namely letters sent to the applicant informing him that the Minister proposed to recommend his dismissal to the Government, were previously released in part on foot of FOI request reference 156/213/2008. It further indicated that access had been previously been granted in full or in part to all medical records from 1986 to 1989 on his file.
The applicant wrote to this Office on 23 January 2013 applying for a review of the Department's decision, and sought, in particular, "a letter from the Minister for Justice/Government dismissing [the applicant] as a prison officer from the prison service dated 23rd May 1989".
During the course of the review, the Department explained that the applicant's FOI request of 2008 was for access to his prison personnel file and that the request that is the subject of this review was considered in the context of that application. The Department provided copies of five schedules of records which were considered on foot of the 2008 request, described by the Department as follows:
In consideration of the request that is the subject of this review, i.e. records that were furnished to the then Minister to enable the Government to decide on the applicant's dismissal, the Department states that it is unclear from the file exactly what records were furnished to the Minister and that it is possible the entire file was provided. Accordingly, for the purposes of the review, the Department provided copies of all records from file entitled "17/2724A - Dismissal of Prison Officer [applicant's name], Portlaoise Prison 23 May, 1989" up to and including a letter dated 23 May 1989 from the Department of the Taoiseach to the Private Secretary of the Minister for Finance informing of the Government's decision to dismiss the applicant. The Department also provided a schedule of those records, comprising 139 pages. According to the schedule provided, the majority of the records had already previously been considered for release on foot of the 2008 FOI Request apart from pages 2 to 34 and page 56.
The Department stated that the applicant's request for internal review identified three categories of records sought, namely
The Department further stated that its decision on internal review addresses the first two categories, as set out above. On the matter of access to medical records pertaining to the period, the Department stated that access was granted, in whole or in part, to all medical records falling within the scope of the request apart from record numbers 15 and 32 which formed part of the Memorandum for Government dated 22 May 1989 (records 2 to 34). Nevertheless, it argued that that access should be refused to the Memorandum and associated records under section 46 of the FOI Act.
During the course of the review, the applicant confirmed, by letter dated 22 April 2013, that he is seeking access to the three categories of records as described by the Department and reflected in his request for internal review. Following correspondence with this Office, the Department agreed to release a copy of a letter dated 23 May 1989 from the Government Secretary to the Personal Secretary of the Minister for Finance advising that at a meeting that day, the Government had decided that the applicant should be dismissed with effect from that date. Following further correspondence with this Office, the applicant stated, in a letter dated 25 November 2013, that he had not received all relevant medical records, either on foot of his 2008 FOI request or his more recent request. Subsequent to the applicant's letter, the Department agreed to release medical records 15 and 32, copies of which had been previously withheld, and it indicated that all medical records have now been released. Nevertheless, the applicant maintained that he had not received copies of all medical records
On 17 January 2014, the Department provided details of its records management practices in so far as they relate to records such as those sought by the applicant and of the searches it undertook to locate all relevant records. On 23 June 2014, Mr Christopher Campbell of this Office wrote to the applicant and informed him of his preliminary view that having regard to the information supplied by the Department, it was justified, under section 10(1)(a) of the FOI Act, in deciding that no further relevant medical records exist or can be found. Mr Campbell also explained that the Department had agreed to release five of eight non-medical documents to which access had previously been refused and he expressed his view that the Department was justified in refusing access to the remaining three records. Having examined the three records in question, I am satisfied that they do not fall within the scope of this review, as confirmed by the applicant in his letter of 22 April 2013. Accordingly I do not propose to give any further consideration to the release of these records in this review.
In conducting this review I have had regard to the correspondence between the Department and the applicant and to the correspondence between this Office and both the Department and the applicant.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
This review is concerned solely with the question of whether the Department was justified, under section 10(1)(a) of the FOI Act in refusing access to further relevant records relating to
As may be apparent from the Background Section above, a significant amount of confusion has arisen in this case as to the precise nature of the records coming within the scope of this review. In my view, the confusion arose, in part at least, as a result of the manner in which the Department processed the applicant's FOI request. The applicant made a precise request for records. Rather than process that request, the Department initially refused the request under section 10(1)(c) on the ground that a previous request from the applicant for the same records had already been considered. Section 10(1)(c) provides for the refusal of a request where granting it would, by reason of the number or nature of records concerned, require the retrieval and examination of such number of records concerned as to cause a substantial and unreasonable interference with, or disruption of, the work of a public body. Clearly, it was not appropriate to rely upon section 10(1)(c) in this case as the section does not provide for a refusal on the ground that the same records were sought in a previous request. It would have been more appropriate, in my view, for the Department to engage with the applicant to identify what records he was seeking that he believed he had not received on foot of the previous request. It is important to note that section 7(7) of the Act requires public bodies to offer assistance to requesters in the preparation of requests.
However, it is also the case that the applicant does not appear to understand that this Office cannot consider the question of access to records that are not captured by the scope of a review. Indeed, at various stages of the review, he indicated that he was seeking other records which clearly fell outside not only the narrow scope of the review as confirmed by him in his letter of 22 April 2013 and, indeed, some also fell outside the scope of the FOI request as originally framed. For the reasons I have outlined above, the scope of this review is as described in the relevant section. If there are any specific records to which access was refused by the Department in its decision on the applicant's 2008 FOI request, I see no reason why the Department should not process a new request for such records and consider the matter afresh.
It is also important to note that this Office, in implementing the terms of the FOI Act, is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which the applicant considers ought to exist. It is also to be noted that the FOI Act does not require a public body to create records where such records do not exist or are not held by it.
It is the position of the Department that it does not hold any further records relating to the categories of records identified above, namely;
the letter deciding to dismiss the applicant from the Prison Service,
correspondence informing him of the decision to dismiss, and
all medical records pertaining to that period.
Section 10(1)(a) of the FOI Act provides for the refusal of a request where the public body considers that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the public 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 his/her decision and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. 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. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).
As I have indicated above, Mr Campbell of this Office wrote to the applicant on 23 June 2014 outlining the details provided by the Department of its records management practices in so far as they relate to records such as those sought by the applicant and of the searches it undertook to locate all relevant records. While I do not intend to repeat those details here, I rely upon them for the purposes of this decision. In essence, it seems to me that the applicant considers a letter should exist formally dismissing him from the Prison Service. On this matter, the Department provided, at internal review, a copy of a letter dated 14 November 1988 from the Department to the applicant informing him that the Minister had decided to proceed with a recommendation of dismissal to the Government and it referred to two letters that had been released on foot of his 2008 FOI request, namely letters dated 7 May 1987, April 1988 and 23 May 1989, informing the applicant that the Minister had decided to recommend his dismissal to Government. During the course of the review, it also released a copy of a letter dated 23 May 1989 from the Government Secretary to the Personal Secretary of the Minister for Finance advising that at a meeting that day, the Government had decided that the applicant should be dismissed with effect from that date. The Department's searches located no other relevant record. While I make no finding on whether a record of the precise nature sought by the applicant existed, it seems to me, having regard to the details provided by the Department, that it has carried out all reasonable steps to locate all relevant records.
On the matter of whether further medical records should exist, I am similarly satisfied that all reasonable searches have been carried out and that all relevant records coming within the scope of this review have been released to the applicant. It may be the case that further relevant medical records are held by the Office of the Chief Medical Officer. Such records, if they exist, clearly fall outside the scope of this review. Accordingly, I find that the Department was justified under section 10(1)(a) of the FOI Act in refusing access to further relevant records on the basis that they do not exist or cannot be found.
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 to refuse access to further relevant records pursuant to the provisions of section 10(1)(a) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator