Decision
Mr Ken Foxe, Right to Know CLG and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-155646-N1G7B0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155646-N1G7B0
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records about guidance to International Protection Office (IPO) staff on ‘citizen journalists’ or members of the public questioning them about their work
22 May 2025
In a request dated 2 October 2024, the applicant sought access to a copy of any advisories or guidance issued to staff of the IPO on what to do if confronted or videoed by individuals masquerading as journalists (i.e. self-described 'citizen journalists') or members of the public asking questions about their work in International Protection. On 9 October 2024, the applicant agreed with the Department’s suggestion that his request be confined to records dating from to 1 January 2023.
On 29 November 2024, the applicant sought an internal review from the Department as it had not issued a decision on his request. After engagement with this Office, the Department issued a decision on 21 January 2025 refusing the applicant’s request under section 32(1)(a)(ix) and 32(1)(b) of the FOI Act. On 22 January 2025, the applicant applied to this Office for a review of the Department’s decision. In his application, the applicant said that the Department did not consider part-releasing the records, it did not demonstrate a thorough consideration of the public interest, and it did not provide sufficient reasons for refusing the request under section 32. The applicant also raised concerns about the adequacy of the search for records.
During the course of this review, the Department revised its position and released two records to the applicant with the names of staff redacted under section 32(1)(b) of the Act on the basis that release could reasonably be expected to endanger the life or safety of a person. The two records are emails containing brief advice to all IPO staff.
The Investigating Officer provided the applicant with an update on the Department’s submissions after it released the emails to him and gave him an opportunity to make his own submissions. The applicant responded by saying that he accepted the Department’s decision to redact the names of staff contained in the emails. However, he questioned the adequacy of the searches carried out in relation to his request. The applicant said that it was difficult to accept that just two records were found given the seriousness of the context of staff safety. The Investigating Officer sought further details of the searches undertaken to locate all relevant records and provided the applicant with details of the additional submissions provided by the Department. The applicant asked that we proceed to a decision on his application for review.
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, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
The applicant accepted the Department’s decision to redact the staff names in the records released to him. Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a), to any further relevant records.
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. The role of this Office in such cases 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. I must also 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 its submissions to this Office, the Department provided details of its search process upon receipt of the applicant’s request. The Department said that email accounts of IPO Senior Management (Principal Officer (PO) grade) were searched by the individual POs. The DOJ Portal where staff notices are posted was also searched and nothing relevant to the request was found. It stated that Senior IPO staff of PO grade were asked to search their inboxes using the following search terms: “Citizen journalist”, “Citizen journalist + advice”, “Citizen journalist + guidelines”, “Approach from members of the public”. The Department said the IPO staff handling this request have worked in the IPO for a number of years and, should further records exist, they are satisfied that they would be aware of these records as they would have received the email notifications.
The Department stated that searches were carried out in the email accounts of PO grades serving in the IPO at the time of the issues raised in the request, including one PO who was no longer working there. These POs comprised the senior management team in the IPO and would have had responsibility for creating, discussing and circulating any written instructions to staff.
The Department stated that any instructions discussed or issued to IPO staff would have been discussed and approved at PO level. It said there is no possibility that instructions or guidance would have been prepared and not shared or discussed at this level. It added that no further records would have been misfiled nor misplaced. The Department said that no records were destroyed as none existed other than the records which were released to the applicant.
The Investigating Officer asked the Department what type of records of guidance/advice would be issued to staff when their safety is potentially at risk. It responded by saying the Timberlay Handbook was created in 2023 to cover matters of health and safety in matters specific to the IPO and was issued to all staff. It said that a copy of this handbook was provided to the applicant as part of a previous FOI request. The Department stated that the handbook lays out what IPO staff should do when dealing with security issues both in and outside the building. It said that the handbook contains general advice to staff on concealing their lanyards before exiting the building. The Department said that although the Timberlay Handbook is the advice/guidance for staff on general health and safety issues specific to working in the IPO, it does not contain advice on what to do if confronted or videoed by individuals masquerading as journalists.
The Department said that the Timberlay Handbook states: "Security plans are rarely formal written documents. They are often a simple conversation about how we will manage a risk we’ve found. This is sometimes called Dynamic Risk Assessment." The Department said this is what happened in a dynamic situation where IPO staff faced the possibility of being confronted by citizen journalists while trying to access their workplace.
The Department said that the IPO also hold regular Senior Management Team meetings where any guidance or advice for staff is discussed if required. Any such discussions would feed into each Assistant Principle (AP) Team meeting held either face to face or online. The Department said that no written record is created or retained in respect of these meetings. It said that, apart from these regular meetings, the two emails that were released to the applicant are the only other guidance/advice issued to staff. The Department said that each AP holds regular meetings with their individual teams and each Higher Executive Officer has regular meetings with their respective teams. It said that these are information meetings, and no minutes of these meetings are created. The Department added that each manager would also have informal discussions with staff as necessary depending on events taking place at a particular time.
The Department concluded by saying that it holds no records, advisories or guidelines other than those already provided to the applicant. It said the situation was dealt with as it happened and instructions to staff were verbal and made by members of the facilities team who were on site to help manage the situation.
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. The Department provided details of the steps it undertook to locate the records sought by the applicant in his request and in my view has adequately explained why no further records exist.
It is also important to note that the FOI Act provides for a right of access to records held by FOI bodies. 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 existence of certain records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to 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 further records exist. Accordingly, I find that the Department was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis 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, under section 15(1)(a) of the Act, to any further relevant records within the scope of 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.
Richard Crowley
Investigator