Decision
Ms X and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-153111-V0G4W5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153111-V0G4W5
Published on
Whether the Department was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for correspondence with the Legal Aid Board between January 2024 and the date of her request in relation to the challenges of offering legal support to applicants in the context of the fast-tracked asylum system, on the ground that no relevant records exist or can be found
8 January 2025
In a request dated 28 August 2024, the applicant sought access to any internal correspondence with the Legal Aid Board in relation to the International Protection Office’s (IPO) new recruits as well as the challenges of offering legal support to applicants in the context of the fast-tracked asylum system between January 2024 and the date of her request.
As the Department failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request on 26 September 2024. On 22 October 2024, the Department issued its internal review decision wherein it refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. It said that searches were conducted using the phrase “Legal Aid Board” in relation to IPO recruits.
On 23 October 2024, the applicant applied to this Office for a review of the Department’s decision. In her application for review, she said that according to the decision letter she received, the Department had failed to take into account the second part of the request and had apparently only searched for the first part (new IPO recruits) and concluded there are no documents related to her request. She said she would have expected keywords like "fast tracked" to be part of search efforts for records relating to the second part of her request.
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 submissions made by the applicant and the Department during the review. I have decided to conclude the review by way of a formal, binding decision.
Having regard to the application for review submitted, I am satisfied that the scope of this review can be appropriately confined to a consideration of whether the Department was justified in refusing, under section 15(1)(a) of the Act, the second part of the applicant’s request, for correspondence with the Legal Aid Board within the period specified in relation to the challenges of offering legal support to applicants in the context of the fast-tracked asylum system.
Section 15(1)(a) provides that an FOI body may refuse to grant a request when records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that we must have regard to the evidence available to the decision maker in arriving at their decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Department explained that the Legal Aid Board provides legal representation and advice to many applicants for International Protection. It said the Legal Aid Board represents a large number of IPO applicants and are in constant
communication with the IPO in relation to those cases. It said that while there are of course records in existence between the Legal Aid Board and the IPO, none were relevant to the request being made.
The Department said that should the requested records exist, they would be held on the email accounts of senior management in the IPO, namely the Principal Officers. It said searches were carried out on the email accounts of three current senior managers and one who had previously worked in the IPO. It said no records were found and that none of the managers had any knowledge of such records ever existing.
In relation to the second part of the request, the Department said the IPO does not use the term “fast tracked” and so searches made under this heading did not provide any results. It said it may be that the applicant is confusing this term with an “accelerated process”. In terms of the search terms used, notwithstanding the suggestion in the internal review decision that the only search term used was “Legal Aid Board”, the Department said it carried out searches using the term “fast tracked” notwithstanding the fact that the term is not used within the IPO. It said searches were also made using the key words “accelerated process” as this was the nearest term to that used in the request.
The Department said it is satisfied that the requested records do not exist and if the applicant is looking for something specific and can provide some further information,
It would be amenable to conducting further searches. It added that records relating to the challenges of offering legal support to asylum applicants may be more appropriately made to the Legal Aid Board itself. It said the IPO is not involved in the provision of legal aid or representation to applicants other than in the usual processes involved in dealing with any other legal representatives during the course of the application process.
The Investigating Officer provided the applicant with details of the Department’s submission as outlined above. In response, she said she had, indeed, made a separate request to the Legal Aid Board having first been informed by phone that it held some records but that the decision issued was that no relevant records exist. She said she believes that there are records in relation to the provision of legal aid to people from "safe" countries of origin and others in the "accelerated" process but that the Department was withholding release as she had not identified the right keyword. She said it is not easy for any requester to use the exact terminology or words used by civil servants and that the onus is on the Department to prove that it's not using the "wrong keyword" excuse to withhold release of documentation.
Following a request for further clarification, the Department said it is satisfied that any communications to the Legal Aid Board on matters of policy, or changes to policy within the IPO, would always be communicated to the relevant parties in the Legal Aid Board at Principal Officer level. It said it is confident that the searches carried out in this case have been thorough and focussed to the best of its ability using the search terms provided by the applicant. It said searches were extended to include the term “accelerated process” as the words “fast-tracked” referenced by the applicant is not a term used within the IPO.
For an FOI body to be entitled to rely on section 15(1)(a) of the FOI Act to refuse a request, it does not have to be certain as to the existence or otherwise of relevant records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. As such, the question I must consider in this case is whether the Department has taken all reasonable steps to ascertain the whereabouts of relevant records in this case.
On that question, I accept, firstly, the Department’s submission that any communications with the Legal Aid Board on matters of policy, or changes to policy within the IPO, would always be communicated to the relevant parties in the Legal Aid Board at Principal Officer level. I am also satisfied that the nature of the request made in this case was for correspondence of a type that, if it existed, would most likely be exchanged at Principal Officer level and that the Department reasonably limited its search to the email accounts of the relevant Principal Officers.
This leads me to consider the adequacy of the searches actually undertaken of those accounts. While the language of the Department’s internal review decision was such that the applicant understandably assumed that the second part of her request had been ignored and that the search term used to look for records was limited to “Legal Aid Board”, I am satisfied from the Department’s more detailed submissions to this Office that neither was the case and that the actual search terms used were broader than had initially been suggested.
I also understand the applicant’s concerns that a request might be refused simply because a requester has failed to identify the precise key words that might have resulted in relevant records being located. I fully accept that the FOI body itself will often be in a much stronger position than a requester to identify relevant key words when conducting searches for electronic records. However, where it is not immediately apparent to an FOI body that it is likely to hold relevant records, it seems to me that such key words will invariably derive from the language used in the request itself.
In this case, the relevant staff members had no recollection of relevant records ever existing. Regardless, searches were undertaken using a range of key words based on the wording of the original request, and also included a more accurate term that would be more likely to identify relevant records if they existed. Having regard to the searches undertaken, and in the absence of further evidence to suggest that more detailed specific searches might be warranted, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that it was justified in refusing, under section 15(1)(a) of the Act, the second part of the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse, under section 15(1)(a) of the Act, the applicant’s request for correspondence with the Legal Aid Board between January 2024 and the date of her request in relation to the challenges of offering legal support to applicants in the context of the fast-tracked asylum system on the ground that no relevant 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.
Stephen Rafferty
Senior Investigator