Decision
Mr X and Commission for Public Service Appointments
From Office of the Information Commissioner (OIC)
Case number: OIC-101850-H6P9L4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-101850-H6P9L4
Published on
Whether the CPSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a submission it made to the Office of the Information Commissioner (OIC) in relation to a previous review by this Office, on the ground that no further records exist or can be found
13 May 2021
This case has its background in a previous review by this Office, case OIC-94998, concerning the applicant and the CPSA. During the review in that case, the applicant raised concerns about a statement made by the CPSA in its submissions to this Office, details of which had been provided to him by the Investigating Officer.
By way of explanation, the CPSA is supported by a team led by the Director General of the Office of the Ombudsman. That Office provides administrative support through the provision of shared services for a number of Offices, including the CPSA. Following receipt of the details of the CPSA’s submission, the applicant exchanged emails with the Director General in relation to the statement at issue. The CPSA subsequently withdrew its original submission in that case and made a revised submission, without the statement about which the applicant had raised concerns. On 20 October 2020, the CPSA contacted the applicant by email and informed him that it had done so.
On 21 October 2020, the applicant submitted a request to the CPSA for any records that were initially submitted by the CPSA to this Office, all records created, replaced or used since the creation of the original submission, and all related emails.
In its decision dated 1 December 2020, the CPSA granted the applicant’s request and released a number of records, including a copy of its correspondence with this Office. The decision maker noted that the applicant had previously been provided with a copy of the CPSA’s original and revised submission to the OIC. It appears that by that stage, the applicant had already sought an internal review of the deemed refusal of his request. He subsequently indicated that he required an internal review of the CPSA’s decision. On 17 December 2020, the CPSA issued its internal review decision in which it affirmed the original decision. On 4 January 2021, the applicant sought a review by this Office of the CPSA’s decision.
During the course of the review, the Investigator provided the applicant with the details of the searches undertaken by the CPSA for relevant records and of its reasons for finding that no further records exist. The applicant made a submission in response.
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 correspondence between the applicant and the CPSA as outlined above, and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the CPSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request as outlined above, on the ground that no further relevant records exist or can be found.
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. In such cases, the role of this Office 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 his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
It is important to note that the role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As I have indicated above, during the review the Investigator informed the applicant of the details of the searches undertaken by the CPSA to locate relevant records and of its explanation why no further records exist. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.
In his submissions to this Office, the applicant raised queries about the two versions of the CPSA’s submissions, both dated 7 October 2020, which it sent to the OIC in relation to case 94998. Essentially, the applicant believes that further records ought to exist both within the CPSA and between the CPSA and this Office in relation to the revision it made in its submission in connection with case OIC-94998.
In its submission to this Office, the CPSA explained that the applicant had indicated he was unhappy with particular wording contained in the CPSA’s initial submission to the OIC in case OIC-94998. It said it subsequently changed the wording in its submission, highlighting the alteration in red, and resubmitted the original document to this Office. It said this Office did not request the document to be changed but rather, it was changed on foot of communication from the applicant to the Director General. It said the resubmission to this Office indicated that wording had been changed. It said that nothing else in the document was altered as it was a replacement of the original document only. It also explained that while both submissions were dated 7 October 2020, its revised submission was created and sent to this Office on 20 October 2020.
The CPSA added that in its communication to this Office, it stated that it was submitting an amended version of the submission due to the communication it received from the applicant. It said the Investigating Officer was aware of the situation as she had also been informed by the applicant of his dissatisfaction with the inclusion of the particular wording in the CPSA’s original submission. The CPSA said that the amended section was highlighted in red and that a copy of all communications relating to the matter had been provided to the applicant.
The CPSA further stated that full searches of all systems and storage filing systems were conducted for relevant records. It said that all personnel involved were consulted and searches of their records were conducted. It said that emails received by the Director General relating to communications with the applicant and in relation to his request were forwarded to the CPSA. It said there is no record of any actions to be taken on foot of the applicant’s email to the Director General. It said that there were no records of phone calls or notes created. The CPSA said that all relevant records and communications held by CPSA were released and that no other records are held or were created by the CPSA on this matter.
While the applicant made a submission in response to the Investigator’s letter, I am satisfied that he provided no evidence that supports his contention that further relevant records exist. Having considered the CPSA’s explanation of the searches undertaken for relevant records and of its explanation as to why no further relevant records exist, I find that it was justified in refusing access to further records under section 15(1)(a) of the Act on the ground that no further records exist.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the CPSA to refuse the applicant’s request, under section 15(1)(a) of the Act, for further records coming within the scope of his request on the ground that no further relevant records exist.
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