Decision
Mr. Ken Foxe , Right to know and The Department of Public Expenditure
From Office of the Information Commissioner (OIC)
Case number: OIC-155469-T0T1K4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155469-T0T1K4
Published on
Whether the Department was justified in refusing the applicant’s request, under section 15(1)(a) of the FOI Act, for records relating to a dinner attended by the Minister on the ground that no such records exist or can be found
23 April 2024
In a request dated 26 November 2024, the applicant sought access to any records held referring or relating to a dinner attended by the Minister (Pascal Donohoe) in 2022 with a named individual. The applicant provided the Department with a link to an article which mentioned the dinner and said that searches of any mobile phones, relevant private email addresses, messaging services and or Slack Channels (or similar communications platforms) should be considered when processing this request.
On 23 December 2024, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act. On the same day, the applicant requested an internal review, saying it is not plausible that not a single record relating to this matter exists given that the Department had commented on this publicly and dealt with media queries about the dinner. The applicant also questioned whether Minister Donohue had been asked if he holds any records. On 13 January 2025, the Department affirmed its original decision. On 16 January 2025, the applicant applied to this Office for a review of the Department’s decision. He said it seems highly probable that at the very least the Minister’s Special Adviser, Press Adviser, or the Department’s Press Office should hold records on this matter.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions outlining the searches it said it had undertaken to locate the records sought and its reason for concluding that it holds no relevant records. The applicant did not respond to our invitation to make submissions in the matter.
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 referred to above, including the submissions made in the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing the applicant’s request for records relating to the dinner in question under section 15(1)(a) of the FOI Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the Department provided this Office with submissions containing its reasons for concluding that no relevant records can be found, the 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 regard to the them for the purposes of this review.
The Department began its submissions to this Office by stating that Minister Donohue was Minister for Finance in 2022 at the time of the dinner referred to in the request, and so consequently the Department did not expect to hold any relevant records of his engagements from 2022.
The Department provided details of the searches it carried out on foot of the request. The Department said that searches were conducted by the Private Secretary to the Minister. The Department stated that the Secretary searched the following electronic records:
The Department said that it used search terms that included the name of the individual referred to in the article about the Minister and other relevant identifying terms. The Department said the search procedure included searches of email accounts, mobile phones, and the Department’s electronic filing system known as eDocs. The Department said that it does not routinely create hard copy records and when it does, these are scanned and saved to the eDocs system. The Department said hard copy records would therefore appear in searches of electronic records. The Department said it found no references to a dinner with the named individual in 2022.
The Department said all relevant individuals were consulted in the search and their records were searched. The Investigating Officer asked the Department if the Minister’s special advisers, press adviser, and/or press office were consulted during the search. The Department responded by saying that the Minister’s two advisers (one of whom is his press and media adviser) were included in the search for relevant records. It said that staff in the Minister’s Office searched the Minister’s official email account, their own email accounts, phone and eDocs records, as well as searches taking place of the two advisers’ phones and email accounts. The Department stated that the Press Office also confirmed that it had no records and that no other areas of the Department would have responsibility for the Minister’s engagements or associated media queries.
The Department said that, in terms of the media query made in 2024 surrounding the dinner, this was responded to by the Minister’s media adviser by telephone, and no records were created in relation to the call. The Department added that this query was received during the election campaign period and so the media adviser would not have had access to departmental accounts at the time.
The Investigating Officer also asked the Department if there are any records which would be available now, outside of the election period, which may fall under the scope of the applicant’s request. The Department responded to this by saying that the request was processed after the election period, and so any records which would have been within the scope of the request would have been accessible and would have shown up in the searches. It said no additional records have been created since the end of the election period which would fall within the scope of the request.
As the Department noted in its submissions, Minister Donohue was Minister for Finance at the time of the dinner in question. As such, it may be possible that the Department of Finance might hold relevant records. I note too, that in the article referenced by the applicant in his request to the Department and in his application to this Office, the Minister’s spokeswoman said the dinner in question was a private dinner and that no business matters were discussed. The article also noted the dinner was not included in the Minister’s diary, which the spokeswoman said was used predominantly to log official events.
Having regard to the submissions before this Office, and in the absence of any evidence to suggest that further relevant searches ought to be undertaken, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of any relevant records held by it. Accordingly, I find that the Department was justified in refusing the applicant’s request under section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found after all reasonable steps were carried out to ascertain their whereabouts.
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.
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Richard Crowley
Investigator