Decision
Mr Y and Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-149877-Z0K2F2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149877-Z0K2F2
Published on
Whether the IPS was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s request to wear alternative footwear to the standard issued footwear, on the basis that no further records exist or could be found
22 October 2024
In a request dated 23 February 2024, the applicant sought access to records relating to his request to wear alternative footwear to the standard footwear issued by the IPS. Specifically, the applicant requested a copy of an email sent by a named Assistant Governor to the Uniform Unit within the IPS relating to him and records of all subsequent interactions between the Assistant Governor and the Uniform Unit pertaining to him on the matter. On 9 April 2024, the IPS part-granted the request. It released 13 pages of records comprising email correspondence of various dates during the period between 23 June 2022 and 4 August 2023. Personal information of other parties was redacted from the records released to the applicant under section 37(1) of the FOI Act. On 18 April 2024, the applicant sought an internal review of the IPS’s decision, stating that the most important email details he was looking for were omitted (i.e. the original email from the Assistant Governor to the Uniform Unit). The applicant also asked for a copy of an attachment to one of the emails he received that relates to a footwear supplier. He also requested a full copy of an email dated 4 August 2023 that was contained within the records he received. Furthermore, the applicant sought an explanation for the late reply to his FOI request and questioned the independence of the decision maker who was a party to one the emails he received.
On 10 May 2024, the IPS issued its internal review decision refusing the applicant’s request for an additional email from the Assistant Governor to the Uniform Unit under section 15(1)(a) of the FOI Act, saying there is no additional email. The IPS also refused the applicant’s request for the email attachment relating to the footwear supplier under section 15(1)(d) of the FOI Act on the ground that the information is in the public domain and directed the applicant to the website containing the information. The IPS also said that the records provided to the applicant include the full thread of emails from the Uniforms Unit to the Assistant Governor on 4 August 2023.
On 18 June 2024, the applicant applied to this Office for a review of the IPS’s decision. The applicant said he is seeking the original submission by the Assistant Governor to the Uniform Unit regarding his request to wear alternative footwear at work. He said that this email would have been sent between 23 June 2024 and 6 July 2024, and would have contained a copy of a doctor’s letter relating to him. While the date range provided by applicant in his application to this Office was from 23 June 2024 and 6 July 2024, it is evident from the correspondence above and the records at issue that the relevant period is 23 June 2022 and 6 July 2022.
During the course of this review, the Investigating Officer provided the applicant with details of the IPS’s submissions to this Office wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to the applicant’s request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter. To date, no reply has been received from the applicant.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above, including the applicant’s comments in his application for review and to the submissions made by the IPS in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant’s request for a further email that he believes was sent from the Assistant Governor to the Uniform Unit, on the basis that no further relevant records exist or can be found after all reasonable searches have been carried out to locate them.
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 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 and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the IPS provided this Office with details of searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
The IPS stated that searches were carried out on the email box of the Uniforms Unit within the IPS. It said the Assistant Governor was also contacted and asked to carry out searches for any documents relevant to the applicant. The IPS said that the Assistant Governor forwarded an email to the decision maker that had already been identified in the searches carried out of the Uniforms Unit email inbox. The IPS stated that searches of the email account were carried out using the applicant’s name and pay number. It said that searches were carried out using they keyword “footwear” and the applicant’s first name. It said that all records in relation to Uniform are held in electronic format, and that no records have been deleted or destroyed. The IPS said that as Uniform records are not printed or stored on an Officer’s file, the applicant’s file was not searched.
In its submissions the IPS stated that the applicant made a request for a copy of an email sent by the Assistant Governor to the Uniform Unit in relation to him specifically and all subsequent interactions between the Assistant Government and the Uniform Unit pertaining to him on the matter. It said that the first email the Uniform Unit received from the Assistant Governor regarding footwear was on 23 June 2022. It stated that this was a general email asking for advice on the criteria for staff members to wear different shoes with the IPS issued uniform. It stated that this email was responded to by the Uniform team. The IPS stated that the next email received from the Assistant Governor on 23 June 2022 mentions notes from a doctor. The IPS said that the next email sent by the Assistant Governor to the Uniform Unit on the 6 July 2022 contained the applicant’s doctor’s note. The IPS said that this email is the first email received from the Assistant Governor which mentioned the applicant. It said that the applicant received this email thread and the Doctor’s note that was included with it. The IPS stated that the applicant was provided with all records he requested under the FOI Act.
The IPS said the records the applicant is seeking never existed. It said that no email was sent by the Assistant Governor on 23 June 2022 asking about footwear for the applicant, and that the first mention of the applicant by the Assistant Governor was in an email of 6 July 2022. It stated that a phone conversation may have taken place with the Assistant Governor regarding the applicant’s footwear request but that no records on internal phone conversations are held by the IPS.
It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the public body, then that is the end of the matter. It is also 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. 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. Therefore, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the IPS has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist. In the circumstances, I find that the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to further email correspondence between the Assistant Governor and the Uniform Unit concerning the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision to refuse access, under section 15(1)(a) of the Act, to the further record sought the applicant on the ground that no further record exists or can be found.
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