Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-146248-R3T2W5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146248-R3T2W5
Published on
Whether the Department was justified in refusing access to further records pertaining to the hiring of ecologists for forest application screenings. As well as all records relating to the Forest Service decision to conduct its own ecology reports for forest applications, and records which show the reasons for not requiring an ecology report from applicants
19 September 2024
On 9 October 2023, the applicant submitted a request to the Department for all records relating to the hiring of ecologists for forest application screening and the decision to conduct its own ecology reports for forest applications, and records which show the reasons for the decision not to require ecology reports from the applicant.
On 1 December 2023, the Department issued its decision. It released six records relating to competitions it advertised in 2021 and 2022 for the recruitment of Assistant Agricultural Inspectors (Ecologists). It refused access, under section 36(1) of the Act, to records relating to tenders for external ecologists. It refused access, under section 15(1)(a) of the Act, to records relating to the decision to conduct its own ecology reports for forest applications and records which show the reasons for the decision not to require ecology reports from the applicant, on the ground that the records sought do not exist or cannot be found.
On 5 December 2023 the applicant sought an internal review of the Department’s decision to refuse the relevant parts of his request under section 15(1)(a). He suggested that there must be some records of the Department’s decision to hire up to 30 full-time ecologists. He referred to the Department’s Circular 12/2020 which indicated that the Department had constructed a detailed project plan for the processing of licences, including investment in extra resources, and references to a new contract with an external service provider that would be providing five ecologists to work exclusively on licencing. He suggested that the jump to having multiples of this number to work at the Department must be reflected in records held. He suggested that a named official could identify relevant records. He said that for some reason, the Department decided to use in-house ecologists and to refuse to accept ecology reports submitted by foresters. He said three independent ecologists stated that the Department no longer accepted external ecologist reports when he contacted them to do an ecology report for him. He said he was not seeking contractual or financial information concerning the Department’s hiring of ecologists. He said he simply wished to know why a decision was taken to dispense with independent ecologists and the reasoning leading up to this decision.
On 30 January 2024 the Department issued its internal review decision, in which it released one additional record it said it located as part of a new search, namely Departmental Circular 08/2021. It said no other records were located. On 8 February 2024 the applicant applied to this Office for a review of the Department’s decision. He said he had not received the records he had requested.
During the course of this review, the Department released six additional records to the applicant which it deemed as falling within the scope of the applicant’s request. The applicant confirmed he had received the additional records, and stated that he was dissatisfied with how the Department had handled his case thus far. The Investigating Officer then 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 related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, however no further response from the applicant was received.
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 the review. 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 access, under section 15(1)(a) of the FOI Act, to any additional records relating to the applicant’s request for records relating to the reasoning for the Department’s decision to conduct its own ecology reports for forest applications and to not require ecology reports from independent ecologists, 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 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 details of the 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 purposes of this review.
The applicant’s request can be divided into two parts. Part 1 of the applicant’s request is for all records pertaining to the hiring of ecologists for forest application screenings, in particular the Department’s decision making process to hire additional ecologists. Part 2 of the applicant’s request is for all records relating to the Department’s decision to conduct its own ecology reports for forest applications, and records which show the reasons for the decision not to require ecology reports from the applicant. In the interests of clarity, I will deal with each part separately below.
Part 1:
Part 1 of the applicant’s request relates to all records pertaining to the hiring of ecologists for forest application screenings. As noted above, the Department initially released 6 records to the applicant relating to competitions it advertised in 2021 and 2022 for the recruitment of Assistant Agricultural Inspectors (Ecologists). In his internal review application, as well as his application to this Office, the applicant stated he was seeking records which demonstrated the reasons why the Department had begun hiring an increased number of ecologists.
In its submissions to this Office, the Department stated that during the course of the review it had located 6 additional records relating to Part 1 of the applicant’s request. The Department said it believed these records demonstrated the decision making process and rationale for hiring additional internal ecologists. It stated that these records had initially been overlooked due to the workload on hand at the time of the applicant’s request, and apologised for this oversight. The Department subsequently released these records to the applicant.
In relation to the searches carried out, the Department listed the various locations searched, as well as the staff consulted as part of the searches conducted. The Department stated that upon receiving the applicant’s request the decision maker had requested records from individuals who they believed may have held relevant records, and requested that the individuals contacted make them aware of any additional areas or individuals which may hold relevant records. It stated the decision maker works in the Forestry Division, and as such is familiar with the roles and responsibilities of colleagues. The Department stated that in total eight staff members carried out searches for records relating to the applicant’s request. It said that a ‘Search Checklist for Freedom of Information Request’ document had not initially been circulated due to an oversight, but that this document was circulated during the course of the review. The Department said that this document is routinely circulated to staff when FOI requests are received, and as such staff are familiar with it and the searches required.
In relation to the searches carried out, the Department stated that all staff are aware that it is necessary to search for both electronic and non-electronic records (including e-mails, spreadsheets etc.) and for records held on formal files, temporary folders or in any other manner. In this case, it said staff carried out searches of their files for records relating to ecology hiring and tenders, circulars, and in particular for folders regarding the business cases which related to the hiring permanent Department staff. It said staff members reported searching their electronic files on e-docs, shared areas on the network, and their emails. Additionally, some staff conducted searches of their paper files, and reported that no hard copy records were found as any information relating to hiring of ecologists contains personal information and as such is disposed via confidential waste. The Department stated it was not aware of any areas where misfiled records would be located.
The Department’s position is that the additional records released to the applicant during the course of this review adequately demonstrate its decision making process for hiring additional ecologists. It said the records released outline several reasons put forth by Department staff members in support of hiring additional ecologists, such as the increased complexity of issues regarding protected habitats and species, as well as the marked increase in the level of ecological input that is required when assessing forestry applications, which one staff member pointed out “far exceeds the current resources of the DAFM.” It said the records also outline that there are numerous initiatives and forums underway in the Department which require ecological expertise, which in turn requires an increased number of ecologists. Having had sight of the records, I am satisfied that they demonstrate the Department’s reasons for hiring additional ecologists.
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. 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 Department has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records can be found. In the circumstances, I find that the Department was justified in refusing access to further records relating to Part 1 of the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Part 2:
In Part 2 of his request, the applicant said he was seeking all records relating to the Department’s decision to conduct its own ecology reports for forest applications, as well as all records which show the reasons for the Department’s decision not to require ecology reports from applicants. As stated above, the applicant stated that three independent ecologists had told him that the Department no longer accepted external ecologist reports when he had contacted them to conduct an ecology report for him.
In its submissions to this Office, the Department stated that it has not ceased accepting ecology reports from private or external ecologists. The Department said that due to ongoing system improvements, it has now implemented a system whereby a Natura Impact Statement (NIS) should only be provided if specifically sought by the Department. The Department said that by using these system improvements it can now produce AARs more efficiently, provided there is a good quality harvest plan in accordance with the Standards for Felling and Reforestation (DAFM, 2019). It said that this reduces the need for an NIS in certain circumstances, which in turn allows for a more efficient process. The Department stated these system improvements do not mean that it has ceased accepting ecology reports from private or external ecologists, nor that it no longer requires ecology reports from an applicant, but simply that certain licence applications and areas now only require an NIS from the applicant if it is requested by the Department. The Department pointed to afforestation licence applications as an example of an area where it is more likely to request an NIS, compared to tree felling and forest road works licence applications. To illustrate this, the Department referred to Circular 8 of 2021, which states as follows:
“The Department is more likely to request NISs for afforestation licence applications compared to tree felling and forest road works licence applications. It is important that Forestry Companies and Registered Foresters examine their applications that are referred to Ecology to provide additional information outlined above, and engage an Ecologist as required.”
As outlined in the excerpt above, the Department states that an ecologist should be engaged by applicants as and when it is required. The Department said that whilst in certain circumstances an ecology report is not required from a private or external ecologist, this does not mean that it has ceased accepting such ecology reports altogether. Therefore, in relation to the applicant’s request for all records demonstrating the decision making process to cease accepting ecology reports from applicants and private/external ecologists, the Department’s position is that it does not hold any such records as it has not ceased to accept such ecology reports.
It is important to note that 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 an applicant believes ought to exist have not been located. 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 regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Department has adequately explained why no records exist in relation to Part 2 of the applicant’s request. In the circumstances, I find that the Department was justified in refusing access to records relating to Part 2 of the applicant’s request, under section 15(1)(a) of the FOI Act.
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 both parts of the applicant’s request under section 15(1)(a) of the FOI Act.
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