Decision
Mr. Z and Department of Finance
From Office of the Information Commissioner (OIC)
Case number: OIC-147419-D4Z2T7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147419-D4Z2T7
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to records related to any letters or instructions or consents, or any other documents or information authorising, or purporting to authorise, HE Min. Brian Cowen, and/or HE Pres. Mary McAleese, and/or Taoiseach Bertie Ahern, in relation to a named bank account, on the basis that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
14 June 2024
In a request dated 3 January 2024, the applicant made a request seeking access to any letters or instructions or consents, or any other documents or information, authorising, or purporting to authorise, HE Min. Brian Cowen, and/or HE Pres. Mary McAleese, and/or Taoiseach Bertie Ahern, in relation to a named bank account. He provided the Department with an extract from a record that, he said, might assist in locating the records sought.
On 18 January 2024, the Department issued its original decision, in which refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found. On 29 January 2024, the applicant sought an internal review of that decision. On 13 February 2024 the Department issued its internal review decision, which affirmed its refusal of the request under section 15(1)(a). On 13 March 2024, the applicant applied to this Office for a review of the Department’s decision. On 3 April 2024, the applicant provided this Office with submissions, highlighting his belief that the Department had not conducted adequate searches within the Department, and instead has unduly narrowed its searches solely to the Central Bank of Ireland.
During the course of this review, the Department provided this Office with submissions. The Investigating Officer provided the applicant with details of the Department’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, however no further response from the applicant 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. 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 in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for certain records relating to a specified bank account, on the basis that no relevant records exist or can be found after all reasonable searches have been carried out to locate them.
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.
As noted above, the Department provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
As mentioned above, in submissions to this Office dated 3 April 2024, the applicant raised concern regarding the fact that in its original decision, the Department only made reference to searches carried out in the Central Bank of Ireland. In light of this, when requesting submissions from the Department, the Investigating Officer sought to clarify whether the Department had also carried out searches within the Department of Finance for records relevant to the applicant’s request.
In its submissions to this Office, the Department confirmed that it originally searched the Department’s shared digital records, known as eDocs, for any reference to the alleged account number provided. The Department stated that these searches yielded no result. Consequently, as the applicant’s request related to an alleged specific bank account held with the Central Bank of Ireland the Department then contacted the Central Bank of Ireland to ascertain whether it held any records relating to the alleged account number. The Department stated that the Central Bank of Ireland conducted searches of their systems, and also found no results relating to the alleged bank account number provided by the applicant. The Department stated that the number of the alleged account in question does not conform to Irish bank account formats, which all have eight digits, even those in the Central Bank. By way of context, the Department also stated that the signatures for Bertie Ahern, Brian Cowen, and Mary McAleese on the document provided by the applicant do not match their actual signatures, which the Department stated are a matter of public record and available online.
The Department’s position is that the alleged account in question does not exist, and therefore no records relating to it exist. In relation to the searches carried out, the Department stated that files were searched by computer using the alleged account number as a reference. The Department stated that if the alleged bank account were to exist, its position is that with the sums described in the documentation provided with the applicant’s request, the current value of the account would be so high as to ensure that both the Central Bank and the Department of Finance would be aware of its existence.
During the course of the review, the Investigating Officer also queried whether any relevant individuals were consulted and their records searched. The Department stated that staff in the Central Bank of Ireland were also consulted as part of the searches carried out. The staff members consulted reiterated that the number of the alleged account does not match the format of an Irish Bank account, nonetheless the Central Bank of Ireland checked their records and confirmed that no such account existed.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
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 relevant records can be found. In the circumstances, I find that the Department was justified in refusing access to 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to 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.
Stephen Rafferty
Senior Investigator