Decision
Ms X and National Museum of Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-154233-T1Y8V7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154233-T1Y8V7
Published on
Whether the Museum was justified in refusing access to records, under section 15(1)(a) of the FOI Act, relating to human remains in the Museum’s possession, on the grounds that no relevant records exist or can be found
5 March 2025
In a request dated 19 August 2024, the applicant made a 64-part request seeking access to information on human remains in the Museum’s possession. The applicant said she was seeking information “regarding Fionn, the 4,100 year old early bronze age human remains discovered in 2019 during construction of the new N52 road at Tevrin, Co. Westmeath” and information regarding other human remains in the Museum's possession. The request contained a mixture of questions and requests for access to records, including information relating to the storage, display, research and repatriation of human remains.
On 2 September 2024, the Museum responded by asking the applicant to refine parts 47, 53-55 and 61 of the request and it offered some guidance as to how to refine/clarify these parts. For the remaining parts of the request, the Museum said a decision on these parts was due on 16 September 2024 and it notified the applicant that 15(1)(c) of the Act may apply to these parts of the request. Section 15(1)(c) provides for the refusal of a request on administrative grounds where granting the request would cause a substantial and unreasonable interference with or disruption of the work of the FOI body.
On 9 September 2024, the applicant responded to the Museum by clarifying what she was looking for in parts 47, 53-55 and 61 of the request. On 12 September 2024, the Museum wrote to the applicant to say that parts 1-6, 8, 9, 12, 14, 15, 17, 18 and 40 would be refused under section 15(1)(c) of the FOI Act. The Museum suggested ways the applicant could narrow the scope of her request in order to avoid refusal under this section.
Due to its need to seek clarification from the applicant about various parts of her request and its engagement with the applicant on section 15(1)(c), the Museum processed the applicant’s request in four separate decisions. On 16 September 2024, the Museum issued its first decision in which it refused parts 1-6, 8, 9, 12, 14, 15, 17, 18 and 40 under section 15(1)(c) of the Act as it had not received a response from the applicant to refine these parts of the request. The Museum also informed the applicant that it decided to extend the time, under section 14(1)(a) of the Act, to process the remainder of her request.
On 23 September 2024, the Museum wrote to the applicant to say that her correspondence on 9 September 2024 on parts 47, 53-55 and 61 of the request expanded the scope rather than refined it. The Museum offered the applicant another opportunity to refine these parts of the request by providing a date range. On 7 October 2024, the Museum issued its second decision on the applicant’s request, refusing parts 47 and 53-55 of the request under section 15(1)(c) of the Act. The Museum also decided to extend the time under section 14(1)(a) to reach a decision on part 61 of the request.
On 11 October 2024, the Museum issued its third decision on the applicant’s request, refusing part 61 of the request under section 15(1)(a) of the FOI Act as it could not locate any records for this part of the request. On 14 October 2024, the Museum issued its fourth decision on the request. The Museum decided to grant parts 19, 25-28, 31, 33, 34, 38, 39, 41-46, 48-50, 56, 57, 59 and 63 of the request by providing a table of answers to these parts. The Museum refused parts 7, 10, 11, 13, 16, 20-24, 29, 30, 35, 36, 51, 52, 58, 62 and 64 of the request under section 15(1)(a) on the grounds that no records within the scope of these parts could be found.
On 7 November 2024, the applicant requested an internal review of the Museum’s decision. On 29 November 2024, the Museum wrote to the applicant and said that as the four-week deadline to request an internal review of its first two decisions (dated 16 September and 7 October 2024) had passed, it only reviewed its latter two decisions, dated 11 and 14 October 2024. The Museum affirmed both these decisions under section 15(1)(a) of the Act. On 4 December 2024, the applicant applied to this Office for a review of the Museum’s decisions.
During the course of this review, the Investigating Officer asked the Museum if it would be willing to carry out an internal review of its first two decisions on the applicant’s request. The Museum chose to process the applicant’s request by making four separate decisions but the applicant only requested an internal review once all four decisions were made, hence why the deadline to conduct an internal review had passed for the Museum’s first two decisions. The Museum informed this Office that it is willing to carry out an internal review of its first two decisions. Once the Museum issues its internal review of those decisions, it will be open to the applicant to apply to this Office for a review of those decisions, if she wishes.
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 Museum and the applicant. I have decided to conclude this review by way of a formal, binding decision.
For the reasons outlined above, this review is limited to the Museum’s latter two decisions, dated 11 and 14 October 2024, which were the subject of the Museum’s internal review decision. Accordingly, this review is concerned solely with whether the Museum was justified, under section 15(1)(a) of the Act, in refusing the parts 7, 10, 11, 13, 16, 20-24, 29, 30, 35, 36, 51, 52, 58, 61, 62 and 64 of the applicant’s request.
For the benefit of the applicant, I wish to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Furthermore, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act to extract records or existing information held on electronic devices which does not apply in this case.
In her submissions to this Office, the applicant questioned the four-week deadline imposed by the Museum to make her request for an internal review of its decisions. Section 21(7) of the FOI Act provides that an application for internal review shall be made not later than 4 weeks after the requester is notified of an FOI body’s decision. This section also provides FOI bodies with discretion to accept a late application. The applicant also challenged the basis on which the Museum sought a fee for an internal review and the fee involved in seeking a review by this Office. Section 27(13) of the Act provides that a fee shall be charged in respect of an internal review application and in respect of an application for review to the Information Commissioner. However, there are certain circumstances where no fee applies for an internal review or review by this Office, such as in cases concerning access to records that only contain personal information of the applicant.
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.
I do not propose to set out in detail each part of the applicant’s request that were refused under section 15(1)(a). However, both the applicant and the Museum are aware of the content of each numbered part of the request.
In its submissions to this Office, the Museum stated that The Irish Antiquities Division (IAD) is the curatorial division responsible for the archaeological collections, including human remains. It said that the IAD does not have a policy or guidelines on the destruction of records as this is not allowable; all records relating to artefacts are retained. Therefore, no records would have been destroyed in relation to this request.
For parts 10, 13, 16 and 29 of the request, the Museum said it had already addressed the specific reasons as to why it does not hold relevant records for these parts in the decision issued on 14 October 2024. The Museum stated that it does not record the information relating to human remains that the applicant’s request had envisaged. For parts 36, 51, 52, 58, and 64, the Museum said that these were questions rather than requests for specific records. The Museum restated that the FOI Act does not generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. To the extent that these questions can be inferred as a request for records, the Museum stated that it does not maintain any such records. The Museum said that it does not record the information requested in parts 7, 21, 24, 36, 51, 52, 58 and 64 of the request.
In relation to parts 11, 22, 23, 30, 35, 62, the Museum said it does not name human remains. However, based on previous engagement between the Irish Antiquities Division (the “IAD”) of the Museum and the requester, the IAD are aware that the applicant refers to a particular set of human remains on display in the Museum by the name of ‘Fionn’. The Museum said, essentially, the applicant has assigned an identity to this particular set of human remains, which is not reflected in the Museum’s work, and accordingly, many of the records which she is seeking do not exist. In this regard, the Museum said its letter of 14 October 2024 noted that: “Museum does not maintain the type of information you are seeking in respect of human remains, bog bodies or “Fionn” either in general or in a single list or record. This is because the human remains in the Museum’s collection are archaeological objects and, as such, the Museum does not produce or hold the separate, specific and detailed records which are envisaged by these”.
In respect of part 20, the Museum said it is unaware of having received any “requests for repatriation of human remains and objects to local communities in Ireland and abroad”. It said it explained to the applicant that repatriation does not happen within the State.
The Museum said it conducted initial searches of the collections, acquisitions, and excavations databases to establish the volume of records which may relate to human remains. It said that 362 records were described as relating to human remains. It said that records also showed that 9042 boxes of human remains from licensed excavations were held in the collections. The Museum stated that the search of collections and excavations databases was conducted by the Keeper of Irish Antiquities. It said that the IAD was the only division searched because it is the only division of the Museum that holds collections, and their associated records, which are relevant to the applicant’s request i.e. matters pertaining to archaeological human remains. However, the Museum said that it does not record information in relation to human remains which is responsive to the remaining parts of the request.
In an effort to answer part 61 of the applicant’s request, which asked if there had been any legal challenges in relation to human remains in the Museum’s possession, the Museum said that the IAD was searched using key terms: “human” “remains”,’ combined with the terms “legal”, “challenge” and “human”. It said the search produced no results. The applicant’s request also specifically referred to ‘Fionn’, human remains from the Bronze Age discovered in 2019. The Museum also used the search terms s “bog bodies”, “Fionn”, “reinternment”, and “repatriation”, in various combinations, but said this also produced no relevant results.
The Museum stated that it does not store or categorise correspondence relating to human remains (which would include ‘Fionn’) meaning that it would not be possible to identify records stored within the Database falling within the scope of the remaining parts by the taking of reasonable steps.
The Museum said that parts of the applicant’s request were granted that consisted of questions/requests for information by the applicant, which the Museum said it was in a position to answer. It said, notwithstanding that the FOI Act does not generally provide a mechanism for answering questions, the Museum voluntary collated this information into the Appendix of its decision dated 14 October 2024. In respect of the balance of the remaining parts to which access was refused, the Museum said it was not in a position to collate this information in order to provide a response to the requester.
During the course this review, the Investigating Officer provided the applicant with details of the Museum’s submissions outlining the reasons why it concluded that it does not have records containing the information it refused under section 15(1)(a) of the Act. The Investigating Officer invited the applicant to make further submissions if she wished to do so. To date, no reply has been received.
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. Furthermore, as noted above, the Act does not require FOI bodies to create records in response to an FOI request.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Museum has taken all reasonable steps to locate relevant records containing the information sought by the applicant and that it has adequately explained why it is unable to locate any further records. In the circumstances, I find that the Museum was justified in refusing access to those parts of the applicant’s request that it refused 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 Museum’s decision to refuse access to the records sought by the applicant 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.
Richard Crowley
Investigator