Decision
Mr Y and The Department of Justice, Home Affairs and Migration
From Office of the Information Commissioner (OIC)
Case number: OIC-163328-N0M5L2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-163328-N0M5L2
Published on
Whether the Department was justified in refusing access to further records in relation to an application for Legal Aid made on behalf of the applicant on the basis of section 15(1)(a) of the FOI Act
23 January 2026
In a request dated 10 June 2025, the applicant sought access to records held by the Department “in relation to the erroneous granting of Criminal Legal Aid in [his] name”. In a decision dated 1 August 2025, the Department refused the applicant’s request pursuant to section 15(1)(a) of the FOI Act on the ground that no relevant records could be found.
On 6 August 2025, the applicant sought an internal review of the Department’s decision, noting that it had been confirmed to him in writing that legal aid had been granted to his solicitor on a given date, in relation to his case.
On 23 September 2025, the Department issued its internal review decision. A single record was identified on foot of the internal review, and the original decision was accordingly varied with the record concerned being provided in full to the applicant.
On 7 October 2025, the applicant applied to this Office for a review of the Department’s decision on the ground that more records should exist beyond the single record provided to him.
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 both parties. I have decided to conclude this review by way of a formal, binding decision.
The 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 further records relating to an application for criminal legal aid made on his behalf.
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. My 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 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.
In his submissions to this office, the applicant said he believes the searches undertaken by the Department to be inadequate and that it is implausible that there could be no trace of a legal aid application made on his behalf. In support of his claim, he cited written correspondence between himself and the relevant Court Office which he claims indicates that such a certificate must have existed. He provided this Office with a copy of the referenced correspondence with the Court Office.
The applicant also noted his dissatisfaction with the single record retrieved by the Department on foot of the internal review. He said the Internal Review decision“fails to specify what the single located record actually is, and it does not explain the basis or evidence for calling the legal aid grant an ‘administrative error’”. He submitted that it is in the public interest that there be transparency regarding how such administrative errors occur, how they are corrected, and whether proper record-keeping and oversight procedures were followed.
In its submissions to this office, the Department said that in the process of reviewing records for this review, it located the Legal Aid Certificate Number which relates to the application the subject of the applicant’s request. Accordingly, the Department said it is no longer relying on Section 15(1)(a) of the FOI Act in relation to the applicant’s request. It said that due to an oversight, it did not identify that the relevant Legal Aid Number was included in the subject line of the email - which was released to the requester at internal review - as it noted that the Criminal Legal Aid unit does not receive these reference numbers as a matter of course.
While the Department has identified additional records during the course of preparing its submissions to this Office, it stated that it intends to refuse access to certain of those records pursuant to sections 15(1)(i), 36, and 37 of the FOI Act.
The question I must consider in this case is whether the Department has taken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s FOI request. Given the circumstances outlined above, and the fact that this is the second instance where the Department has identified additional records of relevance to the applicant’s request, I am not in a position to conclude that the Department has taken all reasonable steps to locate all relevant records that it holds.
Having considered the submissions in this case, I simply cannot find the Department was justified in refusing access to further records under section 15(1)(a) of the FOI Act. In the circumstances, it seems to me that the most appropriate course of action to take is to annul the Department’s decision and remit the matter to the Department. The effect of this is that the Department must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s fresh decision. This will also ensure that the applicant is given ample opportunity to respond to any exemptions which the Department may claim over the additional records identified should he disagree with its fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision and direct it to carry out a new decision-making process on the applicant’s request.
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