Decision
Mr X and Department of Foreign Affairs
From Office of the Information Commissioner (OIC)
Case number: OIC-151679-T3B5G8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151679-T3B5G8
Published on
Whether the Department was justified in refusing access to further records relating to the applicant and his probation, under section 15(1)(a) of the Act, on the basis that no further records exist or can be found
14 April 2026
This case has its origins in a previous review which came before this Office, OIC-141075-V8X0D3, available on our website, in which this Office previously annulled and remitted the case on the basis that the Department had removed a portion of the applicant’s request from scope unilaterally. This case is a review of the Department’s fresh decision.
On 27 April 2023, the applicant submitted a request to the Department for the following:
“Dear FOI Officer,
I am writing to request a copy of communications or any information held by the Department of Foreign Affairs (DFA) that relate to me, under the Freedom of Information Act 2014 from November 2021 until 2023.
Please prove a copy of any comments or information about me, including issues related to my probation, performance, judgement of my conduct, character, and my disability. The sources of my request include but are not limited to HR staff, my previous managers and senior managers.
Please provide me with the information in electronic format, preferably as PDF documents. If you require any clarification or further details, please contact me at this email address.”
On 2 July 2024, the Department issued its fresh decision on the matter, in which it refused access to records of direct communications to and from the Department and the applicant under section 15(1)(c) of the Act, on the basis that the search, retrieval, and review of all such records would cause an unreasonable interference with, and disruption of, the work of the Human Resources (HR) section. The Department stated that, when making this decision, the decision maker consulted with the Human Resource section, which it said held the majority of relevant records following the previous comprehensive searches which had been undertaken. It stated that the Human Resources section advised that a further search for all such records, and the listing of them on a schedule of records, would cause a substantial and unreasonable interference with, and disruption of, the work of the HR section. In its decision, the decision maker also stated that the applicant’s proposal to reduce the scope of his request to just records from the Secretary General’s Office and from [specified Unit] only, to be released to him over an extended timeframe, to which the Department could not agree, was noted. The decision maker stated the Department was still eager to grant access to the records the applicant had requested, and to that end, he asked that the applicant call him to discuss the matter in more detail.
On 3 July 2024, the applicant applied for an internal review of the Department’s decision, in which he stated that he was deeply disappointed with its decision to refuse access to records of direct communications to and from him and the Department under section 15(1)(c) of the Act. The applicant noted that, in his opinion, the protracted process and barriers imposed by the Department had caused him unnecessary distress. He stated that he found it difficult to accept that retrieving and examining records of direct communications would cause a substantial and unreasonable interference with the work of the HR section and stated that he believed such records should be readily accessible within a well organised HR system. Furthermore, the applicant stated that he believed the Department’s suggestion that he should already be aware of direct communications to and from him and the Department overlooks the fact that he may not have retained copies of all communications, and also that contextual information surrounding these communications is equally as important for his case. He concluded by stating that right of access to personal information is a fundamental principle of both Irish and EU law and is particularly crucial in employment-related matters.
On 23 July 2024, the Department issued its internal review decision, in which it varied its original decision to refuse access to copies of direct communication to and from the applicant and the Department. The Department released 90 records which it stated had been previously identified as falling within the scope of the applicant’s request; it released 89 records in full, and part-granted 1 record under section 37(1) of the Act. The Department stated that the release of the additional 90 records, along with the 410 records previously released, represented the full extent of the records identified by the Department as falling within the scope of the applicant’s request. In relation to its decision to vary its original decision, in its submissions to this Office the Department stated that it had considered the searches which had already been carried out to date and whether there were any other areas where the records could reasonably be located. It stated that it was satisfied that the records previously identified during the initial comprehensive searches comprised a complete account of available records, and that all reasonable steps had been taken to locate records relevant to the applicant’s request, as such, it decided that it would not be necessary to conduct the additional searches which it had initially believed were necessary at original decision stage, and therefore, it no longer felt that granting the applicant access to records of direct communications would cause a substantial and unreasonable interference with the work of its HR Unit, and it decided to grant the 90 records released.
On 30 August 2024, the applicant applied to this Office for a review of the Department’s decision. In his application, the applicant stated that the Department had initially refused his request, and then at internal review stage he stated that whilst the Department had released some records, in his view these records were primarily duplicates of previously released records. He stated that he believed critical records remained undisclosed, particularly records relating to the Department’s decision to terminate his employment. The applicant stated that, in his opinion, the Department has failed to provide any records demonstrating authorisation of his termination from the appropriate authority as required under statute, namely, minutes of meetings or directives signed by the Secretary General pertaining to his employment termination. He stated he believes that if thorough searches of relevant files had been conducted, such records would be located. Further to this, the applicant stated that records of the nature he is seeking could be crucial evidence in separate legal proceedings he was pursuing.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or can be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 the Department and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
As set out above, the Department refused access to certain information in one record on the basis of section 37(1) relating to personal information. However, neither in his request for internal review, in his application to this Office nor in the course of substantial engagement with this Office in the course of its review, has the applicant indicated that he is seeking a review of the Department’s reliance on section 37 with respect to this record. In the circumstances I am happy that I can exclude this matter from the scope of my review.
It is important to note that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps. Requests for all records invariably run the risk of disputes about the scope of the request and about what reasonable steps should be undertaken in an effort to locate the records sought.
The applicant’s request is potentially quite broad, given that it is for “a copy of communications or any information held by the Department of Foreign Affairs (DFA) that relate to me”. However, having reviewed the case, it seems to me that the applicant is essentially looking for all records relating to his probation and subsequent reversion to his previous role. Based on the correspondence provided by both the applicant and the Department, it would appear that both parties have also taken the opinion that this is the intended scope of the request. For example, on a number of occasions in his submissions to this Office, when addressing his belief that additional records should exist, the applicant has specifically referred to “critical documents related to my employment and probationary assessment.” In its submissions to this Office, the Department has expressed a similar understanding of the applicant’s request, stating “as the applicant requested all records related to him, following this preliminary high-level information gathering, the focus of the formal record search was on records relating to his personnel profile and any associated assessment of his work performance.”
Given the above, I am satisfied that it is reasonable to understand the scope of the applicant’s request as being for any records relating to his probation and the Department’s related decision to revert him to his previous role.
As such, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant’s probation, on the basis that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments.
First, in his submissions to this Office, the applicant has raised issue with the manner in which the Department released records to him during its original case, namely providing him with screen captures in PDF format. The applicant has stated that, in his opinion, the Department’s use of screen captures converted to PDF files is highly unusual and undermines transparency. He stated that this method of release raises concerns about whether all records were accurately captured and released, particularly given missing attachments from previous releases. This issue was initially raised during the previous case which came before this Office. In that case, 3 attachments were identified which had not been released, and the Department released those to the applicant during the course of the previous review. In relation to its decision to release the records in PDF format, the Department stated in the previous case that it had taken the additional steps to screen capture and convert to PDF in order to release the records sought by the applicant in the format he had specified in his original request i.e. “Please provide me with the information in electronic format, preferably as PDF documents.”
This Office previously noted (in OIC-141075) that while the applicant indicated that he sought the records “preferably” in pdf format, it would have been open to the Department to release them in another format, if it was more efficient (section 17(2)(a) of the FOI Act refers). This Office also noted that the applicant had indicated to the Department on a number of occasions that there were issues with the records released in this way. In the current case under review, I note that the Department released the additional 90 records to the applicant via ShareFile link and based on a copy of an email dated 23 July 2024 from the Department’s then FOI Officer, I note the Department stated the records were being released in their original Outlook format. As such, it would appear that the Department took into consideration the applicant’s concerns regarding the release of the records in screen captured, PDF format and opted to release the records in a different format during this case. Additionally, to my knowledge, the applicant has not notified this Office of any missing attachments with the 90 additional records released to him in this case. In light of the fact that this Office has previously dealt with the issue of the format of release of records in the previous review, and considering it does not appear that the Department has released any further records in this screen-captured, PDF format which the applicant raised issue with, I am satisfied that the issue was adequately dealt with in the previous review undertaken by this Office, and does not need to be addressed any further.
Second, in his submissions to this Office, the applicant has raised a number of points regarding his belief that the Department’s refusal to release any further records relating to his request under section 15(1)(a) of the Act is an obstruction of justice. He has stated that, in his opinion, by withholding critical documents relating to his employment and probationary assessment that the Department is obstructing his ability to present evidence in his Workplace Relations Commission case against it. He stated that this is a violation of fair procedure principles under Irish law. It should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. As such, this Office can have no regard to the applicant’s reasons for requesting the records at issue, nor can this Office take into consideration the impact the Department’s decision to refuse his request may have on any legal proceedings the applicant is pursuing, as such considerations would be outside the remit of this Office. This review is solely concerned with whether the Department was justified, under section 15(1)(a) of the Act, in refusing access to any further records relating to the applicant’s request, on the basis that no such records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Third, I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. To this end, I note that part of the background of this case involves a disagreement between the applicant and the Department regarding the termination of his employment, an issue which I understand the applicant has taken to the Workplace Relations Commission. I wish to make clear that I have no jurisdiction to consider the substantive dispute between the applicant and the Department with respect to the termination of the applicant’s employment.
Fourth, in his submissions to this Office the applicant stated that, in his opinion, the Department had failed to address the public interest element to his request. He stated that, given the significance of this matter to ensuring the fair treatment under equality laws, withholding records relating to his request undermines the public interest considerations embedded in the FOI Act. It is important to note the scope of this review is solely to determine whether, under section 15(1)(a) of the Act, the Department were justified in refusing access to any further records falling within the scope of the applicant’s request, on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. Section 15(1)(a) of the Act does not include a public interest test, and as such no consideration of any perceived public interest in the records requested can be considered in this case.
Finally, in his submissions to this Office, the applicant has stated that he wishes for this Office to conduct an investigation into what he deems as systemic issues within the Department’s FOI handling process. The applicant has requested that this Office exercise its powers under Section 45(7) of the Act to compel the Department to: (1) release all withheld records relevant to his FOI request without further delay, including any records held in deactivated email accounts and other repositories which were not adequately searched by the Department, (2) provide a detailed audit trail or schedule documenting all search efforts undertaken, (3) address inconsistencies in its submissions regarding missing records from key offices such as the Secretary General’s Office and [named Unit], and (4) ensure transparency in record release formats by discontinuing unusual practices like screen captures converted into PDF’s.
Further to this, in his final submissions to this Office, the applicant stated that, to his knowledge, this Office was entitled to use its full authority under section 45(7) of the Act to compel a truly comprehensive and independent search, specifically including the reactivation and forensic search of his deactivated Department email account, a full audit trail and documentary record of search processes in every relevant Department repository, and a targeted inquiry into the Secretary General’s Office, former [named Unit]’s managers, and all HR/decision-making correspondence linked to his work, contract termination, probation, disabilities, and accommodations complaints. The applicant stated that, in his opinion, given the demonstrated history of non-compliance, lack of transparency, unreasonable refusals, and failure to provide a proper audit trail substantiating its search claims, the statutory bar for this Office to intervene is overwhelmingly met.
Section 45(7) of the Act states:
“A person who fails or refuses to comply with a requirement under this section or who hinders or obstructs the Commissioner in the performance of his or her functions under this section shall be guilty of an offence and be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.”
It is not apparent to me how section 45(7) of the Act is relevant in this case, as it does not specifically relate to the Commissioner’s powers to conduct an investigation, but rather relates to the penalty for failure to comply. I have no evidence before me that the Department has not complied with this review under section 22 of the Act, and as such I deem that section 45(7) has no relevance in this case.
In relation to the applicant’s request that this Office conduct an investigation into what he deems as systemic issues regarding the Department’s handling of FOI requests, such an investigation would take place under section 44 of the Act, if deemed necessary. I would like to note here that this review is solely being carried out under section 22(2) of the Act and cannot be extended into a wider investigation into the alleged systemic issues raised by the applicant above. Such an investigation, if it were to take place, could only be initiated by this Office under section 44 of the Act. A decision to undertake a general investigation under section 44 of the Act is not one taken lightly and is quite uncommon for this Office. Having carefully considered the submissions made by the applicant, including his arguments as to why he believes an investigation is necessary, I am not satisfied that such an investigation is warranted. It would appear to me, based on the submissions outlined above, that the applicant’s concerns relate solely to his request for records and his belief that further records relating to his request should exist, as opposed to demonstrating evidence of Department wide, systemic issues regarding its handling of FOI requests. I acknowledge the applicant feels aggrieved by the Department’s handling of his FOI request, but this does not, in my opinion, warrant a section 44 investigation. Instead, I am satisfied that any such grievances expressed by the applicant, insofar as they might be relevant to the Department’s refusal of his request under section 15(1)(a) of the Act, have been considered and addressed under the section 22(2) review carried out in this case.
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 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.
The Department provided this Office with the reasons for its refusal of the applicant’s request under section 15(1)(a) of the Act, including details of the searches it undertook for records falling within the scope of his request. The Investigating Officer provided a summary of the Department’s submissions to the applicant, and the applicant provided submissions in response. During the course of this review, both the Department and the applicant provided this Office with detailed submissions, and while I do not propose to repeat the submissions from both parties in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the Department has stated that it believes detailed searches have been conducted for records falling within the scope of the applicant’s request on several occasions over the course of many months, and, having conducted these extensive searches, it has stated that it is satisfied that no further records falling within the scope of the applicant’s request exists.
Throughout its submissions to this Office, the Department stated that its position is that no further records relating to the applicant’s request exist. In order to clarify this position, the Department stated that it believed it may be beneficial to provide further context regarding the probation process. The Department stated that it would appear from the communications with the applicant that he believes further records should exist regarding his probation, specifically in which meetings between officers from the HR Division and/or senior management and the Secretary General are recorded. The Department stated that its position is that no such records of this nature exist. It stated that, in line with the ‘Guidelines on the Management of Probation in the Civil Service’, the line manager is responsible for assessing the performance of the officer on probation and making a recommendation as to whether they are confirmed in the role.
The Department stated that the HR manager is then responsible for notifying the officer when the recommendation is that they are not confirmed in the role, as well as providing information in relation to the appeal process. The Department stated that if the officer chooses to appeal, the appeal for officers who have been promoted is heard by the Civil Service Appeals Board. It said the recommendation of the Civil Service Appeals Board, along with the recommendation of the Line Manager, is then submitted by HR to the Appropriate Authority; in this case the Secretary General, for final decision.
The Department stated that this transparent, step-by-step process can be seen in the records released to the requester. It stated that the Secretary General is provided with all documentation needed for an informed decision to be made. It said that the Office of the Secretary General then communicates to HR in writing the Secretary General’s decision. The Department stated that the civil service guidelines do not provide for any meetings to be held prior to this decision being made, and as such, no records of meetings exist. Finally, it stated that all records falling within the scope of the applicant’s request from his direct line manager, and his second supervisor, have been released.
Prior to providing an account of the searches carried out, the Department began by providing an overview of its relevant internal processes for record keeping where personnel records are concerned.
The Department stated that it has approximately 90 officers assigned to a number of HR Units within its HR Division, with each unit facilitating a function in an officer’s employment life cycle. It said these units include Recruitments, Postings and Assignments, Workforce Planning and Competitions, HR Operations, Workplace Relations, Training and Development, HR Strategy and HR Abroad. It stated that, prior to the COVID 19 pandemic, the practice was for each HR Unit to print and file records into a centrally held, paper personnel file, while also keeping electronic versions on decentralised e-filing systems with restricted access. It said that the practice of printing records was made obsolete due to the duration of the public health restrictions associated with the pandemic, and, following the phased return to office-based working, records continued to be held only in electronic format, where possible. It stated this new practice improved upon the security and confidentiality of personnel records, with officers within each HR unit given access to their unit’s records only and not the entire personnel record of any officer.
The Department stated that the Office of the Secretary General does not store personnel records, including any records relating to the probation process of any officer. It stated that any record of this nature received by the Secretary General’s Office is forwarded to the relevant HR Unit once actioned for filing as appropriate. As such, it stated that any record of a discussion with the Secretary General on a personnel matter of any kind would be created and filed by the relevant HR Unit. It said that it is for this reason that no formal requests for records are issued to the Secretary General’s Office in the case of an FOI request of a personnel nature.
Nevertheless, in the interest of completeness, the Department stated that when processing the applicant’s request for records it had confirmed again with the Secretary General’s Office that no such records would be held by them.
In relation to the original searches carried out, the Department began by providing an overview of the searches which had been conducted at original and internal review stage when the applicant’s FOI request had first been received. The Department stated that a member of its staff in the Workplace Relations Unit was assigned as the original responding officer for the request. It stated that this staff member conducted searches for records falling within the scope of the applicant’s request on behalf of the Workplace Relations Unit, the HR function which it said is responsible for the probation process within the Department of Foreign Affairs. The Department stated that, during the course of these searches, the responding officer determined that relevant records relating to the applicant’s request may have been held in other areas within the Department, namely other HR Units, in addition to the records held locally in the Divisions to which the applicant had been assigned during his employment. As such, the responding officer contacted a number of Department officials and requested that they conduct searches for records falling within the scope of the applicant’s request. The Department stated that, at this point, no request for records had been sent to the officer who had acted as the applicant’s line manager for most of his employment in the Department as this staff member had left the Department by this point.
In addition to the searches carried out at original decision stage, the Department stated that the internal reviewer reached out to the 15 staff members who had conducted searches originally and asked them to conduct a further search of their records. The Department stated that these officials were asked to return any documents which were discovered to the reviewing officer. The Department stated this included any new documents, such as recent records generated after the date of the initial FOI request.
The Department stated that, additionally, in an effort to be as thorough as possible and to identify any further possible areas where records could be held, the internal reviewer conducted new searches with the assistance of the Department’s ICT division. It stated that ICT provided the reviewing officer with access to the dormant email accounts of two former DFA officials: a staff member in Human Resources, Strategic HR Unit, and the email account of the staff member who acted as the applicant’s line manager during most of the period covered in his FOI request. The Department stated that both of these two former Department officials had left the Department at the time of the applicant’s initial FOI request, and it stated that whilst records provided by each of these officials had been stored by the Workplace Relations Unit prior to them leaving the Department, that the reviewing officer had determined that there may have been additional records that fell within the scope of the applicant’s request held in these dormant email accounts. The Department stated that any additional records located were collected, screen captured, copied into word, and then exported to PDF format.
The Department provided this Office with a list of the 15 staff members who were contacted by both the responding officer and the internal reviewer to conduct searches for records falling within the scope of the applicant’s request, and this list was provided in full to the applicant during the course of the review. The Department stated that staff members from a wide range of units had conducted searches for records falling within the scope of the applicant’s request, including Human Resources- Strategic HR, Human Resources- HR Operations, Human Resources- Workplace Relations Unit, Human Resources- Workforce Planning, Human Resources- Assignments Team, Human Resources- Disability Liaison Officer, and two named Divisions.
The Department stated that the 15 officials contacted conducted searches of all electronic and paper files held in each of their units, as well as their email accounts, and returned to the responding officer all records located which were identified as falling within the scope of the applicant’s request. The Department stated that each HR Unit contacted conducted searches of their electronic files held on the eDocs system and conducted searches of each Units email mailbox using keyword searches of variations of the applicant’s name. It stated that the individuals contacted also conducted the same searches of their own email accounts. The Department stated that, for example, in the Workplace Relations Unit, all personnel files relating to probation are stored in a Probation Management folder on eDocs. It said that within this there are individually named records, including one for the applicant. The Department stated that in order to ensure records were captured in the event misfiling had occurred, the entire Probation Management folder was searched using key word searches of the applicant’s name and variations thereof. The Department stated that officials in the policy Divisions where the applicant had worked also conducted several electronic searches.
In relation to its record management practices more generally, the Department stated that any records held on a personnel file in a HR Unit are held for an indefinite amount of time. As such, it stated that the practice in place is that any record from an email communication deemed necessary to be held on file is transferred to the relevant eDocs location and deleted from the email account. It stated this ensures that, in the event that an officer leaves the Department, all records of importance from their email accounts would already be stored in the appropriate eDocs location. On this point, which I will address in further detail below, the Department stated that it does not consider it necessary to reactivate the applicant’s email account due to this practice of saving down important emails to the relevant eDocs location. Owing to this practice, the Department stated that the HR Division are satisfied that any relevant email communications referring to the applicant’s personnel record or probation that were sent to or received from the applicant would have been captured through the records kept by the HR Division and the thorough searches made at the time of the initial application and its review, in line with the Records Management policy.
The Department further stated that the collected responses from the above searches were then screen captured, copied into word, and saved in Adobe PDF format. It stated that these additional steps of screen-capturing and converting to PDF were taken as a courtesy to fully comply with the applicant’s request, in which he had stated he wished to receive the records preferably as PDF documents.
The Department stated that the searches outlined at original decision stage identified 201 records that did not appear to already be known to the applicant, and a decision was made by the Department to release all such records. It stated that where a record referred to a third party, the third party’s identifying details were redacted from the records under section 37(1) of the Act. It stated that otherwise, all material identified within the scope of the request was released to the applicant. Furthermore, the Department stated that the searches conducted at the internal review stage located an additional 206 records which did not appear to be already known to the applicant, and the decision was made to release all such records. Again, the Department stated that where a record referred to a third party, that person’s name was redacted from the record. It stated that otherwise, all records located was released.
At both original and internal review stage in 2023, the Department stated that records that it believed or knew to be already known to the applicant- such as correspondence sent by, to, or copied to the applicant- were not included in the set of records released to the applicant. It stated that this was advised to the applicant and that it had received no communication from the applicant that referred or objected to this approach. Nevertheless, the Department stated in its submissions to this Office during this review that it notes and accepts that this Office has since issued a decision in relation to this matter (Case OIC- 141075), wherein this Office stated that active consent should have been received from the applicant prior to the Department excluding such records for release.
The Department also noted in its submissions that during the course of the previous review with this Office it had released three additional records to the applicant, which were attachments. The Department stated its position was that these records were not intentionally withheld, but rather it was due to an administrative error that these attachments did not transfer over in the conversion to PDF process.
As noted above, in its fresh decision issued to the applicant in this case, the Department initially refused access to records of direct communications to and from the applicant under section 15(1)(c) of the Act. However, at internal review stage, the Department varied its original decision and released 90 records of direct communications, 89 granted in full, and 1 part granted. It stated that it was satisfied that the records previously identified during the initial comprehensive searches comprised a complete account of available records of direct communications to and from the applicant, and that all reasonable steps had been taken to locate records relevant to the applicant’s request.
In its original focused submission to the OIC in September 2023, the Department’s FOI Officer had previously advised that over 1,000 records had been initially identified by the Human Resources team as possibly falling within the scope of the applicant’s request. In light of the fact that only 90 records were released to the applicant, the Investigating Officer queried this reduction in the number of potential records in the scope from over 1,000 in the initial focussed submission to this Office in 2023 to 90 records released in the fresh consideration of his request.
In response, the Department stated that it understood the reference to potentially over 1,000 records was arrived at on the basis of preliminary key word searches, which may have returned non-personnel related records as well as direct communications, and an extrapolation of those preliminary searches. It stated that this sort of preliminary high-level information gathering is standard practice in its management of FOI requests, in order to establish ability to respond and resources which might be required to do so. The Department stated that as the applicant requested all records related to him, following this preliminary high-level information gathering, the focus of the formal record search was on records relating to his personnel profile and any associated assessment of his work performance. It stated that this did not include his day-to-day work communications e.g. Department wide notifications, duplicate emails, non-substantive emails re scheduling. As such, it stated that while reference was initially made to potentially over 1,000 records in its August 2023 submission, it can confirm that there were never over 1,000 records individually formally identified or gathered which were deemed as falling within the scope of the applicant’s request.
Instead, the Department stated that the 90 records released at internal review stage in July 2024, following the fresh consideration of the applicant’s FOI request, comprise the complete number of records of direct communications that fall within the scope of the applicant’s request.
The Department stated that the release of the additional 90 records, along with the 410 records previously released at the initial original and internal review stage, represented the full extent of the records identified by the Department as falling within the scope of the applicant’s request. It stated that its position is that a comprehensive and exhaustive search of Departmental records has been undertaken, and that all relevant records have now been identified. It stated that full consideration of where records could be filed, in addition to where they should be filed, was also undertaken, with searches taking place in both HR function areas, along with the policy areas of the Department where the applicant had worked.
In addition, the Department stated that extensive searches of email accounts and files have been carried out by multiple Department officials on at least two separate occasions. It stated that it has also reactivated and searched the dormant email accounts of two individuals who it identified as potentially holding further records falling within the scope of the applicant’s request. The Department stated that these searches used a variety of key-word combinations, such as variations of the applicant’s name and initials. It stated that it is satisfied that no further records exist relating to the applicant’s request beyond those which have already been released to the applicant, and that all reasonable searches to ascertain their whereabouts have been taken.
During the course of the review the applicant provided a number of submissions to this Office, which he grouped into key themes/areas of concern that he wished to highlight. In general, the applicant expressed dissatisfaction with the searches conducted by the Department, stating that he believed the adequacy of the searches conducted fell short of what is required under the Act. The applicant stated that, in his opinion, whilst the Department has claimed exhaustive searches were carried out using key words such as his name, and variations thereof, that this approach does not ensure comprehensive retrieval of all relevant records. Further to this, the applicant stated that, in his opinion, the Department’s refusal to provide a detailed audit trail of search efforts, keywords, repositories, or methods of searches is evidence of deficient compliance with the FOI Act. He stated that without providing an audit trail the Department’s claims of completeness are unverifiable and do not meet statutory transparency requirements.
The applicant also stated that he believes additional records exist relating to his request which have not been released to him. He stated that he believed critical documents were conspicuously absent, giving the following examples: (1) almost no record from the Secretary General’s Office, despite its role in probationary decisions, and (2) limited or missing records involving the former Director of [named Unit], against whom the applicant stated he made complaints to HR about regarding working practices. The applicant stated that he believes these omissions are implausible given their direct relevance to his employment and probationary assessment. He also stated that, in his opinion, the Department’s assertion that no personnel records exist in these areas directly contradicts standard practices for record-keeping in civil service employment.
As noted above, in his submissions to this Office the applicant raised concerns regarding the search efforts of the Department, stating he believed the steps taken to search for records relating to his request were inadequate. The applicant stated that, in his opinion, whilst the Department has claimed exhaustive searches were carried out using key words such as his name, and variations thereof, he believes that this approach does not ensure comprehensive retrieval of all relevant records. Further to this, the applicant stated that, in his opinion, the Department’s refusal to provide detailed audit trail of search efforts, keywords, repositories, or methods of searches is evidence of deficient compliance with the FOI Act. He stated that without providing an audit trail the Department’s claims of completeness are unverifiable and do not meet statutory transparency requirements.
As evidenced earlier in the decision, the Department provided this Office with a detailed account of the searches it carried out for records falling within the scope of the applicant’s request, which included a comprehensive list of all staff who conducted searches and a list of all Units within the Department which were searched. These details were shared with the applicant in the update letters provided.
In addition to the search details provided, the Department also provided an account of the electronic searches carried out, namely the use of key words such as the applicant’s name and the variations thereof. On this point, I acknowledge the applicant has raised concerns regarding the key word searches employed by the Department, in particular, I note that the applicant has stated he believes the Department’s reliance on keyword searches alone i.e. his name and variations thereof, is inadequate for locating complex or multi-personnel records, especially with ambiguous or unhelpful subject lines. However, given the fact that the applicant’s request was specifically for all records relating to him and his probation, I am of the opinion that using his name as the key word criteria for the searches carried out was an acceptable choice, especially given the fact that such searches would likely return all records where the applicant’s name appears, which would in turn guard against records being missed if other, more general search terms were employed. Further to this, the applicant has not provided this Office with any specific examples of alternative key words he believes should have been used. As such, given the submissions before me, and without any indication as to specific examples of searches the applicant feels have not been carried out, I am satisfied that the Department has demonstrated that it undertook detailed and appropriately targeted searches for records falling within the scope of his request via the search methods outlined above.
In his submissions to this Office, the applicant raised issue with the fact that the Department has not reactivated his email account to conduct searches for records relevant to his request. On this point, the applicant has stated that he believes this refusal to reactivate his email account is unreasonable given the account’s potential relevance to locating missing records which he said could be critical to the WRC case he is pursuing against the Department. The applicant stated that he does not accept the Department’s argument that to reactivate and search his email account would cause an undue burden on its HR Unit. On this point, he stated that the Department’s refusal to reactivate his email account may constitute non-compliance under section 45 of the Act, which empowers the Information Commissioner to compel access to the records.
The applicant stated that the Department’s refusal to reactivate his former Department email account was legally indefensible. He stated that, in his opinion, section 15(1)(a) of the Act requires all reasonable steps to be taken to locate records falling within the scope of a request, and he asserted that administrative convenience does not justify excluding a principal repository of relevant contemporaneous records, especially where the effect is grossly prejudicial to his legal claim and rights. The applicant stated that European and Irish case law affirms that a refusal to utilise available electronic search tools, or to access accessible (albeit inconvenient) archives, does not meet the standard of exhaustive, reasonable searches required under the FOI Act.
On this point, it is important to note that there is a significant distinction between the definition of exhaustive and reasonable; 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 are known to have existed cannot be found. 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.
In light of the above concerns raised by the applicant in his submissions to this Office, the Investigating Officer contacted the Department to ascertain its reasoning for deciding not to reactivate and search his email account. In summary, the Department stated that it did not believe reactivating the applicant’s email account was either necessary or reasonable.
In its submissions to this Office, the Department stated that it believes it has conducted extensive searches for records falling within the scope of the applicant’s request. It stated that a wide range of staff who would have had direct contact with the applicant regarding his probation and work performance have carried out searches of their records on a number of occasions, which resulted in the location, and release of, a number of records to date. It stated that, in light of this, it is not clear to the Department what additional records he may consider are available.
In respect of its decision not to reactivate the applicant’s email account, the Department stated in its submissions to this Office that it took the view that any records that were held by the Department in relation to the applicant’s request which were identified as direct correspondence with the applicant relating to his work performance would have been sent and received by his direct line manager and their line manager, along with the relevant areas of HR, and would have been therefore located during the comprehensive searches carried out by the various Department Units/officials outlined above.
Further to this, the Department stated that the applicant’s mailbox would likely have a significant number of operational correspondences as related to the areas in which the applicant worked; this would have included significant correspondence between the requester and his line manager. It stated that as this would also essentially include normal operational communications created in the course of his official duties, those records would not fall within the scope of the request but would still need to be examined on an individual basis and cross checked with the records already scheduled and released by the Department to ascertain whether they would fall into the category of records in the scope of the request.
The Department stated that as the Act obliges it to undertake reasonable steps to identify relevant records, it was unclear to it how the Department would be able to search the email account to identify relevant records as the key word searches this would entail would generate results that encompass the entirety of the inbox. The Department reiterated that, given it has a policy of saving down relevant records to the appropriate files, it is satisfied that any records sent or received directly to the requester would have been filed by the relevant Department official and subsequently located during the searches carried out by the Department to date. It stated that, in its opinion, the additional technical steps required to reactive the mailbox and to then review each individual communication to consider whether the correspondence would fall within the scope would be considered a significant disruption to the work of the Department and would not be a reasonable step to take considering that any direct correspondence record that would be held by the Department would have already been captured through the searches already carried out to date and have been released to the applicant.
The Department stated that, having considered the extensive searches conducted to date across all staff who would have had direct contact with the applicant regarding his probation and work performance, it is not clear to the Department what additional records he considers are available. It stated that without any clear guidance from the applicant as to what additional specific records he believes exist the Department does not believe it would be a reasonable or necessary step to reactivate his email account to conduct searches.
When provided with an account of the Department’s submissions as above, the applicant stated that he did not accept the Department’s justification for not reactivating his email account. In particular, the applicant stated that, in his opinion, the Department’s assertion that any emails of substance would have already been “filed” ignores the reality of working practices where relevant discussions often remain only in sent/received folders.
Having considered the submissions provided above, and in the absence of any evidence to the contrary, I am satisfied that the Department has adequately justified its decision not to reactivate the applicant’s email account and examine every email in the account. It is my understanding, based on the submissions before me, that the applicant is specifically seeking records which relate to his probation, and the Department’s decision in respect of his probation. As such, I am satisfied that general operational correspondence relating to the applicant’s day-to-day work in the Department would not be considered as falling within the scope of his request. The Department has provided this Office with submissions which demonstrate its belief that any records relating to the applicant’s work performance, probation, and decision to terminate his employment would have been located during the detailed searches carried out to date. It has stated that it does not believe it is necessary to reactivate his email account in circumstances where it believes all individuals whom the applicant would have sent or received emails from regarding his work performance and probation have conducted searches of their records, and all records located during these searches which were deemed as relevant to the applicant’s request have now been released to him. Further to this, its position is that any records of operational importance related to his probation would have been saved to its central filing system in line with Department practice. I acknowledge the applicant does not believe this is actually the case, however, without any evidence to the contrary, this Office takes the submissions of all parties to a review at face value, and as such this Office has no reason to believe the Department does not follow the practice of saving down relevant emails to its central filing system as appropriate.
Based on the information before me, and in the absence of any specific examples from the applicant of records he is seeking relating to his probation which he believes have not been released, I am satisfied that the Department was justified in deciding that reactivating and searching the applicant’s email account would go beyond the taking of reasonable steps required in section 15(1)(a) of the Act.
In his submissions to this Office, the applicant has maintained that he believes further records should exist relating to his probation, the Secretary General’s Office, and his former line manager, Director of [named Unit]. The applicant stated that virtually no records relevant to his probation leading to his contract termination were released to him from either of the above entities (Secretary General’s Office and former line manager), barring two isolated documents. The applicant stated that, in his opinion, this is implausible by any standard for civil service record-keeping, especially given the scale and formality of a probationary termination. The applicant stated that the Department’s claim that “HR and Secretary General’s Office have almost no records” directly contradicts both the central administrative roles of these offices and civil service norms. He stated that the failure to provide these records, in his opinion, casts doubt on the credibility and good faith of the Department’s search process. It is worth noting here that, whilst the Department have stated that no records regarding probation of any staff member would be held by the Secretary General’s Office- which I will expand on below-, based on the submissions before me, as well as the number of records released to the applicant to date, it does not appear the Department has claimed that HR held “almost no records” relating to his request. To my knowledge, the Department released a number of records to the applicant from various HR units over the course of his request.
When asked by this Office to provide specific examples of what further records he believed exist in relation to the Secretary General’s Office and his former line management (named individual), the applicant stated that he believes there are a number of missing high-value records. In relation to the Secretary General’s Office, the applicant stated that he believes that the following specific records should exist: any directive or summary of the final decision in his probation termination, especially documents indicating review, sign-off, or advice at senior civil service level. The applicant stated that it is not credible that the Secretary General’s Office holds virtually no records, despite the central role of this Office in such high stakes employment matters.
Further to this, the applicant also stated that he believes complaint records relating to a named individual and former senior managers from a named Unit should exist. The applicant stated that he believes formal complaints evidence is missing, including file references and documented HR complaints about working practices involving his former line manager were not released to him, despite their direct link to decisions under review. He stated that he believes there should be records of his formal complaints against a specified individual, and stated these records should include all correspondence, draft notes, instant messages (e.g. Jabber), responses, and follow-up between his former manager, him, HR, and senior management. The applicant stated that only a subset of general records was produced (Records 1-36, 151-185), but that he believed critical documents- with traceable subject lines and timelines- are missing, which he stated suggests incomplete search or disclosure. The applicant did not provide any specific examples of the critical documents he believes should exist, nor did he provide any specific examples of the traceable subject lines or timelines which he states are missing.
As the applicant had specifically mentioned in correspondence with this Office that he believed that the Secretary General and the former Director of [named Unit] should hold records in relation to his request, the Investigating Officer asked the Department in their request for submissions whether the Secretary General and the former Director of [named Unit] conducted searches for records relevant to his request, and if so, what the outcome of those searches were.
In response, the Department firstly stated that both during the initial search for relevant records when the applicant’s FOI request was received, and secondly at the review stage, the responding officers at the time requested that the former Director of [named Unit] conduct a search for any relevant records. The Department stated that any such records which were located during these searches were reflected in the schedule of records provided in the responses issued to the applicant in May and June 2023. The Department stated that, for example, records 1-36 and 151-185 in the schedule of May 2023 related to records returned by the applicant’s former line manager, Director of [named Unit].
Further to this, in relation to the alleged lack of records relating to complaints made by the applicant against his former manager, the Department stated that it could confirm, per the schedule of records from May 2023, that records 51 to 56, 76, 91 and 160 relate to the complaint that the applicant references. Furthermore, the Department stated that, per the schedule of records from June 2023, records 1, 4, 20, 35 to 38, 46 to 56, 82, 83, 101, 108, 122, 124, 136 and 137 relate to the complaint that the applicant references. The Department stated that the records referred to were scheduled and released to the applicant at original decision stage and internal review decision stage, respectively.
In addition to this, the Department stated that, in line with Civil Service Dignity at Work Policy, the parties in question are notified of the complaint and where informal measures are deemed not appropriate, or have not been successful, a Designated Person is appointed to the case. It stated that this Designated Person meets with the parties and makes a determination on whether the complaint meets the definition laid out in the policy and what, if any, evidence or witnesses have been named. The Department stated this information is compiled in a report for the HR Manager to review and determine next steps. In its submissions to this Office, the Department stated that the records which have been released to the applicant to date, which it said are stored in the Department’s filing systems, include the communications to the parties involved in the complaint submitted, the Designated Person’s report, and the communication from the HR Manager advising on the conclusion of the process. As such, it stated that its position is that all records relating to the complaint made by the applicant have been released to him.
In addition to records relating to the formal complaint submitted by the applicant, the applicant also stated in further submissions to this Office that he was seeking “all correspondence, draft notes, instant messages (e.g. Jabber), responses, and follow-up between [named individual], [himself], HR, and senior management.” The applicant stated that only a subset of general records had been released to date i.e. records 1-32, 151-185, and he stated that he believed critical records (with traceable subject lines and timelines) remained missing, which he stated suggested incomplete search or disclosure. The applicant provided no further information regarding what specific critical records he believed were missing, nor did he provide any examples of subject lines or timelines he believed were missing. In response, the Department stated that ‘Jabber’ refers to Cisco Jabber and it is a telecommunications tool used in the Department. It stated this tool includes an instant message function. However, it stated that instant messages are not stored centrally and any messages sent or received are automatically deleted when both parties close down their devices. The Department went on to state that the issue of instant messaging and handwritten notes was addressed in the previous decision annulled by this Office, in which it stated that its position was that any messages which may have come within the scope of the applicant’s request no longer exist due to the automatic deletion feature. The Department also stated that relevant staff were consulted in relation to handwritten notes concerning the requester and none were located. In light of the above, the Department stated that it had no reason to expect that any further records exist, and it stated that it is confident that all reasonable steps have been taken to locate and release all records falling within the scope of the applicant’s request.
Secondly, in relation to whether searches were carried out by the Office of the Secretary General, the Department stated that, as set out earlier in the decision under the subheading ‘relevant record holding practices’, the Office of the Secretary General does not hold personnel records, including any records relating to the probation process of any officer. It stated that any record of this nature received by the Secretary General’s Office is forwarded to the relevant HR Unit once actioned for filing as appropriate. As such, it stated that any record of a discussion with the Secretary General on a personnel matter of any kind would be created and filed by the relevant HR Unit. It said that it is for this reason that no formal requests for records are issued to the Secretary General’s Office in the case of an FOI request of a personnel nature. Nevertheless, in the interest of completeness, the Department stated that when processing the applicant’s request for records it had confirmed again with the Secretary General’s Office that no such records would be held by them.
Finally, the Department stated that all records relating to the applicant actioned by the Office of the Secretary General have been released to him. It stated that, for example, records 72 and 89 in the schedule of May 2023 relate to records actioned by the Office of the Secretary General. The Department stated that, given the above, it is satisfied that no other records would exist that could be held by the Office of the Secretary General, as the process relating to probation is clearly defined with all relevant records held by the HR Unit.
Having carefully considered the submissions provided by both the applicant and the Department in relation to the above, I am satisfied that the Department has adequately explained its reasoning for concluding that no further records exist in relation to the Director of [named Unit] and the Secretary General’s Office. The Department has provided submissions to support its position that all records relevant to these parties have been released to the applicant, and it has outlined the searches carried out to locate these records. In the absence of any specific examples of records the applicant believes are outstanding, I cannot see what further steps the Department would be expected to take to justify its reliance on section 15(1)(a) of the Act in respect of these records.
Based on the information currently before this Office, it is not clear to me what further records the applicant believes should exist, beyond those which have been outlined above. It would appear that the Department has taken reasonable steps to locate any records falling within the scope of the applicant’s request in relation to both the Secretary General’s Office and the applicant’s former line manager, Director of [named Unit]. The applicant was asked to provide specific examples of the type of records he believes to be outstanding; however, no such specificity was received, barring the statements outlined above by the applicant. As such, without an exact understanding of the precise records the applicant believes have not been released, it is not clear to this Office what further steps the Department should reasonably be expected to undertake.
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 are known to have existed cannot be found. 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.
Having carefully considered the submissions provided by both the applicant and the Department, and having regard to;
• the Department’s description of the searches it said it has undertaken,
• its explanation of its records management practices in respect of the type of records sought by the applicant,
• its account of the number and nature of records released to date,
• its reasons for concluding that it does not hold any further records, and
• the absence of any evidence to suggest that further relevant searches might be warranted,
I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant.
I acknowledge that the applicant is clearly frustrated with the Department’s handling of his FOI request, and that he believes that further records should exist. However, the applicant has not provided this Office with any specific information regarding further records he believes exists, and instead has provided this Office with detailed, but crucially generic, submissions outlining the records he believes are outstanding. In the absence of specific information regarding the type of records he believes should exist, and having considered the detailed account of the Department’s searches carried out to date, as well as the circa 500 records released, this Office has no basis to conclude that further searches would be warranted.
As noted above, 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. Having considered all the evidence before me, I am satisfied that the Department has adequately demonstrated it has taken all reasonable steps necessary to locate the records sought by the applicant, and therefore I find that it was justified in refusing access to any further records relating to the applicant and his probation held by the Department, on the basis that no such further records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to further records relating to the applicant and his probation, 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.
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.
Mary Connery
Investigator