Decision
Mr C and Department of Justice and Equality
From Office of the Information Commissioner (OIC)
Case number: 120219
Published on
From Office of the Information Commissioner (OIC)
Case number: 120219
Published on
Whether the Department was justified in refusing to grant access to any further records relating to the applicant in respect of the period 1 June 2010 to 14 June 2012
21 May 2014
In a request dated 14 June 2012, the applicant sought access to records relating to him held by the Department, or in the Minister's Private Office or the Minister's Constituency Office, in respect of the period of 1 June 2010 to 14 June 2012. On 20 June 2012, the Department notified the applicant of an extension of time under section 9 of the FOI Act in which to process the request. The applicant was informed that he could expect a response to his request no later than 13 August 2012.
As no decision was forthcoming by 13 August 2012, the applicant applied for an internal review on the basis of the deemed refusal of his request under section 41 of the FOI Act. On 3 September 2012, the Department decided to grant the applicant's request in part and to refuse it in part. By letter of the same date, the applicant made an application for review to this Office.
On 31 January 2014, Ms. Melanie Campbell, Investigator, wrote to the applicant to notify him of her preliminary observations on the matter, which were based on the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26, and the submissions received from the Department and An Garda Síochána at the time. In a submission dated 3 February 2014, the applicant explained his reasons for disagreeing with Ms. Campbell's preliminary observations. His comments indicated that he was largely aware of the contents of the records that the Department had decided to withhold. Ms. Campbell sought an explanation and further submissions from the Department accordingly. She also met with the applicant at his request on 20 February 2014.
In a submission dated 19 February 2014, the Department explained that, on 30 May 2013, following a complaint to the Data Protection Commissioner, the applicant had been granted access under the Data Protection Act to further records previously withheld, but with some redactions. The Department agreed to release the same records to the applicant under FOI and also agreed to release some of the material that had previously been redacted.
At the meeting with Ms. Campbell on 20 February 2014, the applicant explained the background to his request, which relates to the circumstances of his arrest on 29 October 2010 in the course of an investigation by An Garda Síochána of an alleged offence under section 10 of the Non-Fatal Offences Against the Persons Act 1997. In light of the information already in his possession at the time of the meeting, the applicant accepted that he no longer required access to the records that initially fell within the scope of the review in this case. However, he argued strongly that the Department should hold additional records relevant to his request.
Accordingly, on 24 February 2014, Ms. Campbell contacted the Department again to request that it carry out a new search for further relevant records in light of the applicant's arguments and having regard to the Adequacy of Search - Guidelines published by this Office on our website at www.oic.gov.ie. The Department made a reply on 20 March 2014 in which it outlined the additional steps taken to search for further relevant records and agreed to release additional copies of correspondence relating to the applicant which had been located. The additional records did not provide any "new" information, however; i.e. they were not the type of records that the applicant had expressed an interest in uncovering. The Department took issue with the applicant's claim that it should hold additional records of a significant nature which are relevant to his request.
Ms. Campbell then wrote on 27 March 2014 to the applicant to give him an opportunity to respond to the Department's submission regarding the search issue. To date, however, no further submission or other reply has been received from the applicant. Accordingly, with the authority delegated to me by the Commissioner, I have decided to conclude the matter by way of a formal, binding decision on the basis of the information now before me.
As stated by Ms. Campbell in her letter dated 27 March 2014, this review is now concerned with the question of whether the Department was justified in refusing to grant access to any further records relevant to the applicant's request under section 10(1)(a) of the FOI Act.
Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.
The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner)understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision ".
I note that the applicant is a former CIE employee who brought a High Court case against CIE and was subsequently arrested as part of an investigation into the alleged harassment of another CIE employee. The investigation also involved an alleged forged letter relating to the applicant's case against CIE that purportedly was written by the former Minister for Transport, Mr. Noel Dempsey, to the Attorney General at the time. The records which have been released in this case reflect that a conversation was held by former Secretary General Sean Aylward and Secretary General of the Department of Transport Tom O'Mahony regarding the alleged forgery in connection with the applicant. A note of the conversation was forwarded by Mr. Aylward to then Garda Commissioner Martin Callinan on 22 September 2010, and a reply by Mr. Callinan of the same date stated that a certain Detective Superintendent "has met Sec Gen O'Mahony and matters are in train".
Given the high level of involvement by two Secretaries General, the direct referral of the matter by Secretary General Aylward to the Garda Commissioner, and the Garda Commissioner's reply to the Secretary General referring to a meeting between the Detective Superintendent and Secretary General O'Mahony, the applicant argued that the Department must necessarily hold additional records that are relevant to his request. Accordingly, in writing to the Department on 24 February 2014, Ms. Campbell asked the Department to search in particular for the following:
• a detailed record of the conversation between the Secretaries General;
• a record of a related discussion between the Garda Commissioner and then Secretary General Aylward;
• other records explaining some of the content of certain released records.
Ms. Campbell also suggested that the Department's search should include records of any interviews between the Gardaí and Mr. Aylward and/or Mr. O'Mahony. In addition, Ms. Campbell asked the Department to search for records, including additional records of communication between the Department and the Gardaí, relating to a letter sent to the applicant by the former Minister for Justice in which he referred to "a criminal investigation into an attempted fraud". Ms. Campbell explained to the Department that the applicant had highlighted that the legal definition of "fraud" is distinguishable from "forgery" in that it requires an element of making a gain or loss by deception.
In its reply dated 20 March 2014, the Department stated new searches were conducted in Crime Division (which deals with general crimes issues); Crime 4 Division (which deals with firearms licensing issues); and Garda Division (which deals with issues about Garda complaints). These Divisions had not originally been asked to search for records in response to the applicant's request as it had not been considered likely that they would hold relevant records.
In addition, further searches were conducted in the Secretary General's Office and the Minister's Office. The Department stated that the new searches included the Document Management databases, staff email accounts, including that of former Secretary General Aylward, the Justice diary of former Secretary General Aylward, manual files held in the Secretary General's Office, two Ministerial correspondence tracking systems (current and archive), and the general inbox for e-mails sent to the Minister (info@justice.ie). As noted above, these searches uncovered additional copies of correspondence which the Department has agreed to release to the applicant.
The Department's submission includes the following general comment:
"We do not accept [the applicant's] contention that we must necessarily hold records such as witness statements or associated records. It should be noted that this Department has no direct involvement in the investigation of criminal complaints which is a matter solely for An Garda Síochána and the DPP. We do not have direct access to such files/records and it would be unusual for us to hold witness statements or other documents from such investigations. In addition, we do not accept that it follows from the documents already disclosed that further documents such as correspondence with the Gardai or with the Department of Transport are held by us."
It is apparent that, despite Mr. Aylward's involvement in the matter, the investigation of the applicant concerned CIE and the Department of Transport more so than the Department to which the request in this case was made. In the circumstances, and having regard to the Department's submission dated 20 March 2014, I am satisfied that the Department has taken all reasonable steps to search for records relating to the applicant in respect of the period specified. I therefore find that section 10(1)(a) applies to any further records relevant to the applicant's request.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.
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Seán Garvey
Senior Investigator