Decision
Mr. Y and The Data Protection Commissioner (DPC)
From Office of the Information Commissioner (OIC)
Case number: OIC-161324-G3B8Z0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161324-G3B8Z0
Published on
Whether the DPC was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to an offer made to the applicant under the Civil Service Mobility Scheme, on the ground that no further records exist or can be found
4 December 2025
The Civil Service Mobility Scheme offers staff members an opportunity to apply for a transfer to other Civil Service offices. As I understand it, the applicant applied to transfer to the DPC under the Mobility Scheme and while he had accepted an offer from the DPC to transfer on mobility, this offer was subsequently withdrawn by the DPC due to a conflict of interest which prevented the move from proceeding.
On 1 July 2025, the applicant requested access to records in relation to employment requests that he had made to join the DPC under the Civil Service Mobility Scheme, to encompass the employment contract offer made to and accepted by him and that was subsequently terminated by the DPC. He said that, for the avoidance of doubt, he was seeking records concerning or in connection with the termination of the accepted offer.
On 29 July 2025, the DPC granted the applicant’s request, releasing 19 records to him. On the same day, the applicant applied for an internal review of the DPC’s decision, on the basis of what he termed inadequate search and/or disclosure. On 8 August 2025, the DPC affirmed its original decision, stating that all relevant records in its possession had been given to the applicant and that no records had been withheld. On 8 August 2025, the applicant applied to this Office for a review of the DPC’s decision.
During the course of the review, the DPC released a copy of correspondence and related records concerning a representation it had received on behalf of the applicant from a TD. The DPC provided submissions to this Office detailing the searches it said it had undertaken and the reason it concluded that no further records exist. The applicant was provided with details of those submissions and invited to make further submissions, which he duly did.
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 and to the submissions made by the DPC and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
In the course of this review, the DPC noted that its searches had located a record relating to a previous mobility offer made to the applicant but that it considered that this record was outside of the scope of the applicant’s request. The applicant initially maintained that the previous mobility offer was within the scope of this review. However, when the Investigating Officer put it to the applicant that the wording of his original request appeared to restrict the scope to the withdrawn mobility offer at issue, the applicant indicated that he was happy to exclude the previous mobility offer from this review. As such, this review is solely concerned with records relating to the withdrawn mobility offer.
It is the DPC’s position that all relevant records have been released to the applicant. This is, in essence, a refusal to release further relevant records pursuant to section 15(1)(a) of the FOI Act which 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.
Accordingly, this review is concerned solely with whether the DPC was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records.
In submissions to this Office, the applicant expressed dissatisfaction that certain records surrounding the decision made to withdraw his mobility offer were not created by the DPC. The applicant maintains that this goes against the public policy of having transparency and accountability. As the Investigating Officer explained to the applicant, this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records.
Section 15(1)(a)
Section 15(1)(a) of the 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. The role of this Office 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 to 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 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, details of the DPC’s submissions were provided to the applicant. While I do not intend to repeat those details in full here, I confirm that I have had regard to them, and to the submissions made by the applicant, for the purpose of this review.
In its submissions to this Office, the DPC outlined the general details of the mobility process, and the different steps involved in it, including in cases where a decision is made to withdraw an employment offer already made. The DPC stated that the formal policy for mobility moves is that which applies to the Civil Service Mobility Scheme. According to the DPC, no requirement exists for records beyond normal HR correspondence between the receiving and sending organisations, the NSSO and the applicant for mobility. According to the DPC, relevant records that are required to be created include internal email records and the casefile. The DPC stated that there is no formal, documented DPC process specifically for assessing potential conflicts of interest arising in mobility assignments. According to the DPC, such matters are addressed on a case-by-case basis, with due regard to the operational circumstances and the need to safeguard the integrity of the DPC’s functions.
The DPC went on to specifically address the applicant’s case and what records it expected to have been created. According to the DPC, following verbal contact by the Deputy Commissioner with responsibility for the function in which the role concerned is located, the potential conflict of interest was decided on by the Head of People and Learning, who then decided that the mobility move could not proceed for the role in question. According to the DPC, the matter was addressed promptly and at senior level, by the Head of People and Learning and her team as part of day to day in-person HR activities. The DPC also said that, in this instance, all internal correspondence was carried out by phone and that a minimum of electronic records was created as the process was at an early stage, as per standard procedures. The DPC said that, as such, there were no formal minuted meetings specific to this matter or written reports which would have created additional records. The DPC said that, having regard to the nature of this case, in which the mobility offer was withdrawn due to a conflict of interest, the DPC does not consider it likely that any additional records exist beyond those outlined in its submissions. The DPC said that the decision was taken on the basis of information already identified, and that no further records were, or would be expected to have been generated. This, according to the DPC, is because the process did not move to a more advanced stage for additional records to have been created. The DPC said that no further records ever existed and that no relevant records were destroyed.
The DPC also described the searches it carried out in order to locate relevant records. The DPC said that relevant staff members were consulted, and searches completed. According to the DPC, targeted searches were conducted across relevant email accounts and systems, using the applicant’s details and those of staff members most likely to have been involved. The DPC stated that the searches identified only the correspondence already released to the applicant. The DPC stated that all records were in the possession of Local HR. The DPC said that the location searched was the email folder with all records maintained by DPC People and Learning. It also said that there are no further locations where relevant records might be stored. The DPC added that all files were available electronically and in the possession of DPC People and Learning. The DPC stated that searches were conducted using the applicant’s full name and the email address he had used in his communications with the DPC. The DPC said that, in addition, searches were run using the names and accounts of named relevant individuals working in the HR section of the applicant’s own department, in the DPC and in the NSSO. The DPC said that these identifiers were selected as they represent the individuals and shared accounts most likely to have been connected with communications on the mobility process.
The applicant maintains that the searches carried out by the DPC fell short of what is required. He noted that the DPC’s original decision letter did not provide details of the searches carried out nor did it identify who had carried them out.
When the Investigating Officer provided the applicant with details of the DPC’s submissions, the applicant expressed dissatisfaction with what he termed the record culture and policy in the DPC. He also stated that he was disturbed by the fact that the DPC had not released the correspondence between it and his TD and maintained that the DPC’s withholding of it, because they considered it to have already been in his possession, was not tenable under the Act. When the DPC subsequently released records relating to his TD’s representation, the applicant questioned whether the DPC had carried out searches to establish whether there were any records relating to a discussion referred to in an internal email of 12 June 2025, that was released to him within the records relating to his TD’s correspondence. He also queried whether DPC staff use various messaging systems for work purposes, and, if so, had the DPC searched these systems for relevant records. Finally, the applicant questioned if the DPC had sought legal advice in relation to his case.
As referenced above, the applicant’s TD made a representation to the DPC on the applicant’s behalf in relation to the withdrawn mobility offer. The DPC stated that correspondence between the DPC and the applicant’s TD had initially not been released to the applicant as the DPC had understood that this correspondence was already in the applicant’s possession. However, during this Office’s review, the DPC released this correspondence to the applicant, along with internal email correspondence surrounding the TD’s representation. The DPC explained that the TD’s representation was initially issued to the DPC Information helpdesk email address and then forwarded to its dedicated Oireachtas mailbox, as per standard internal procedures. The DPC went on to say that, as per usual subsequent procedures, this representation was then referred via email to the relevant area of the DPC for response (Local HR) where, on subsequent discussion, a draft submission letter was then prepared for the attention of the Data Protection Commissioner. The DPC said that this draft letter was then reviewed and acknowledged/signed off by that office before onward issuance to the applicant’s TD via the DPC Oireachtas mailbox. The DPC explained that searches were carried out by assessing the contents of the relevant folders and mailboxes.
The Investigating Officer asked the DPC whether there are any records of the discussion referred to in the internal emails released to the applicant concerning his TD’s representation. In response, the DPC said that there was no record made of the discussion mentioned within the released email. The DPC stated the email in question was brought to the attention of the relevant area in the DPC for preparation of the response to the TD. It said that there was eventually no formal scheduled meeting with the relevant functional area, with a short verbal briefing being provided on procedures involved in responding to representations.
As noted above, the applicant queried whether DPC staff use messaging systems for work purposes. When the Investigating Officer put this to the DPC, it responded that its staff do not use message systems such as WhatsApp, Viber or Signal for work purposes. While the DPC initially stated that, in accordance with internal policies, software and applications which are not necessary for staff to carry out their duties are not installed on DPC devices, upon more specific questioning from the Investigating Officer, the DPC stated that Skype is available in its office but is not used for official business purposes. The DPC added that, due to the specific nature of its work, official internal business communications are carried out via email, phone and Webex for online/remote meetings. The DPC also stated that correspondence between the relevant sections in terms of the applicant’s request was carried out by email, phone, remote call or in person only.
In regard to the applicant’s query relating to legal advice, the DPC stated that no such records were created as no legal advice was sought.
In its submissions to this Office, the DPC provided details of the searches it carried out and has explained why it considers that all relevant records have been identified and released to the applicant. As noted above, the DPC also addressed further queries from the Investigating Officer arising from the submissions made by the applicant. The DPC said that, in line with its procedures, the only written records it holds are in the form of emails and email attachments, all other internal communication in this case having been carried out orally via phone, videoconference or in-person. The DPC provided details of the searches it carried out of the relevant email accounts and has concluded that the only records it holds are the emails it has already released to the applicant and the correspondence between it and his TD. While the DPC did not initially release the correspondence relating to the representation made on the applicant’s behalf, it has now released these records. While the applicant has questioned the DPC’s failure to release this correspondence in the first instance, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Given the de novo nature of my review, it is not necessary for me to consider access to those records that were released during this review any further.
Having regard to the submissions before this Office, and in the absence of any evidence to suggest that further relevant searches ought to be undertaken, I am satisfied from the details provided by the DPC about its records management practices and the searches it said it undertook that it has adequately explained why no further relevant records exist or can be found, other than those already released to the applicant. Accordingly, I find that the DPC was justified in refusing access to further records coming within the scope of the applicant’s FOI request under section 15(1)(a) of the Act on the ground that no further 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 DPC’s decision to refuse access to further relevant records 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.
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Richard Crowley
Investigator