Decision
Ms. X and Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-143595-R7Q5D3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143595-R7Q5D3
Published on
Whether the Board was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request for certain records concerning a complaint made under the Dignity at Work Policy 2015 on the ground that no further relevant records exist or can be found
10 September 2024
In a request dated 20 July 2023, the applicant sought access to all records sent by the Board to the Office of Government Procurement (OGP) and to a named consultancy firm (company A) in relation to her for the period February 2022 to the date of her request, including in particular those compiled and sent by a named staff member of the Board. The records sought relate to a complaint made under the Dignity at Work Policy 2015. Company A was appointed to conduct an investigation pursuant to the Policy.
In a decision dated 14 September 2023, the Board divided the request into four parts:
1. Records sent by the Board to the OGP,
2. Records sent by the named staff member to the OGP,
3. Records sent by the Board to company A, and
4. Records sent by the named staff member to company A.
It refused parts 1 to 3 of the request under section 15(1)(a) of the FOI Act on the ground that the records sought did not exist. It granted access to three records relevant to part 4 and refused access to a number of other records under section 15(1)(i) on the ground that those records were already available to her.
On 9 October 2023, the applicant sought an internal review of the Board’s decision. She said she was also seeking copies of all correspondence sent by company A to the Board. Among other things she referenced an email she received from the staff member named in her request which indicated that the staff member had contacted the OGP. On 26 October 2023, the Board varied its original decision. It released an email coming within the scope of part 2 of the request and affirmed the remainder of the decision. On 6 November 2023, the applicant applied to this Office for a review of the Board’s decision on the ground that she had not received all relevant records.
In submissions to this Office during the course of this review, the Board provided details of the searches undertaken to locate relevant records and of its reasons for concluding that no further records exist. The Investigating Officer provided the applicant with those details and invited the applicant to make further submissions on the matter, which were duly received. The Investigating Officer sought and received further comment from the Board in relation to the applicant’s submissions and those details were again provided to the applicant. The applicant then made further submissions in response.
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 between the Board and the applicant as set out above and to the various communications between this Office and both the applicant and the Board on the matter. I have decided to conclude this review by way of a formal, binding decision.
During the course of this review, the applicant confirmed that she did not require a review of the Board’s decision to refuse access to certain records that it considered to be already available to her. As such I have given no further consideration to those records. Moreover, while the applicant sought additional records in her request for internal review and during the course of the review, namely correspondence the Board received from company A and the OGP, those records did not form part of her original FOI request. Her request was for records sent by the Board, not records received. Such records do not, therefore, fall to be considered in this review.
I also note that during the course of this review, the applicant indicated that she requires access to certain identified financial records, namely invoices and statements of account. While it is not apparent to me that such records come within the scope of the applicant’s request, I note that she made a separate request for such records on 18 December 2023 and that she has applied for a review of the Board’s decision on that request (case OIC-149821 refers). Accordingly, I will give no further consideration to such records in this review.
Accordingly, this review is solely concerned with whether the Board was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records coming within the scope of the applicant’s request of 20 July 2023 relating to a complaint made under the Dignity at Work Policy 2015 on the ground that no further relevant records exist or can be found.
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 his/her 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 Board provided this Office with details of the searches it said it undertook to locate relevant records and its reasons for concluding no further records exist, which were subsequently provided to the applicant. The applicant also made a number of submissions to this Office in the course of this review. While I do not propose to repeat details of the submissions of both parties in full, I can confirm that I have had regard to them in their entirety for the purposes of this review.
In its submissions of 1 February 2024, the Board said the original decision maker asked all senior managers to check their records and their units’ records for records coming within the scope of the request and that all senior managers submitted a nil return. It said the decision maker engaged directly with the staff member named in the applicant’s request, who provided a Dignity at Work complaint file for consideration. It said the relevant records identified were either released or withheld on the basis that they were already available to the applicant.
In relation to the email that the applicant had referenced in her request for internal review and that was subsequently released on internal review, the Board said the original decision maker noted that the business of the Board would require regular communication with the OGP and that a significant administrative burden would arise in seeking all records sent to the OGP over the extended time period concerned. It said that to allow a timely
processing of the request, the decision maker specifically sought records only pertaining to the applicant’s personal data as sent to the OGP by the senior managers concerned. It said, however, that while noting that the email in question did not contain the applicant’s personal data, he decided to release the email as it related to the applicant.
The Board added that it was not accurate to suggest that additional relevant records exist. It referred to an email it had sent to the applicant on 13 July 2023 wherein it explained that no documents were sent by the Board to the OGP that referred to the applicant and that correspondence with the OGP did not require mention of the applicant to request an investigator from the framework in place. It said the document which the applicant believes contains personal data does not contain same. It said the Service Request Form for External Workplace Investigation Services is a template to be completed when an external investigation is being sought from a specific framework of service providers. It said it does not require inputting of personal details of any staff member. It said the Data Protection Unit of the Board, in respect of a Data Protection request, forwarded the document as sent to the Office of Government Procurement to the applicant to illustrate that no personal data of hers was sent to the organisation concerned.
The Board subsequently clarified that the records sought are typically in both electronic and paper files. It said storage of such records is on a secure server (electronic file) and in a locked filing cabinet (paper files) and that both were searched. It said offsite filing does not arise.
On 12 March 2024, the Investigating Officer notified the applicant of the Board’s submissions. In response, the applicant again referred to the email she received from the staff member named in her request which indicated that the staff member had contacted the OGP. She noted that the email in question referred to an attachment that had been forwarded to the staff member on 6 June 2023. She said none of the records she received include any correspondence between the staff member and company A enclosing a copy of that attachment. She also said she wanted copies of a number of related invoices and statements of accounts.
In its response of 20 March 2024, the Board said the applicant’s comments concerning the attachment were unclear. It added that the invoices and statements of accounts identified had been sought under a separate request and were being dealt with under that request.
The Investigating Officer sought clarification from the applicant in relation to the attachment referenced. In response, the applicant explained that the attachment was a document she had provided to the staff member and she said she had asked the staff member to forward that document on to company A. She said she received no record of that having been done. In response to that point, the Board said no such record exists as the staff member confirmed that she did not send the attachment to company A. It said the staff member had informed the applicant, by email dated 23 June 2023, that she did not send the document to company A.
The Investigating Officer informed the applicant of the Board’s response and invited her to make further submissions. While the applicant made further submissions, the details of those submissions essentially concerned the decision that the Board made on her request for financial records, which falls to be considered in our separate review in case OIC-149821 and that I have excluded from the scope of this review.
I note that during its initial processing of the FOI request, the original decision maker appeared to have confined the search for records to those that specifically referenced the applicant. Such an approach represents an unduly narrow interpretation of the request, in my view. The applicant specified that her request was for certain records *“in relation to”* her, and was not confined to records that specifically referenced her. In the case ofEH v the Information Commissioner [2001] IEHC 182, the High Court outlined the test to be applied in considering whether a record “relates to” personal information about a requester. O’Neill J said that“it seems to me to be absolutely clear from the use of the phrase “relates to” that a document need not itself contain “personal information” about the requester.” He found that the test to be applied to determine whether a record “relates to” the personal information was“whether there is a sufficiently substantial link” between the requester’s personal information and the record in question. Indeed, I note that on internal review, the Board identified a record that had been sent to the OGP that did not specifically reference the applicant but did, indeed, relate to her, and that it released that record (the Service Request Form).
In its submission of 1 February 2024, the Board included the body of an email it sent to company A with certain records attached. While the Board appears to have provided the attachments to the applicant, it confirmed to this Office that it had not provided a copy of the email enclosing the attachments to the applicant. It said that this email to company A referenced in its submissions was not released as the Board did not consider it to be within the scope of the applicant’s request.
The Board said that the request from the applicant was read as worded by her in plain and literal terms. It said she sought the documentation sent to company A and so the searches and queries made internally were to identify all documentation as sent to company A ‘in relation to her’. The Board said that it was not until 16 June 2023 that any papers relating to the Dignity at Work complaint were forwarded. It said that up to this point, only information relating to the actual appointment of an investigator pursuant to the framework was exchanged.
The question I must consider in this case is whether the Board has, at this stage, taken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. In considering this question, I note the Board’s submissions in respect of the searches undertaken and the staff members consulted, the details of its record management practices in respect of such records, and the fact that it examined the specific Dignity at Work complaint file. I also note that it listed a number of emails in correspondence with this Office that do not appear to have been considered for release due to its interpretation of the request.
Having regard to the submissions as outlined above, I am not satisfied that the Board has justified its conclusion that no further records relating to the applicant’s request exist or can be found in this case. As noted above, I consider the Board to have taken an unduly narrow interpretation of the request made by limiting its searches to records that mention the applicant and by failing to consider records that might not mention her but relate to her. I am satisfied that the emails mentioned above came into being directly as a result of the decision to engage an investigator on foot of the complaint. As such, I am satisfied that they are captured by the wording of the applicant’s request.
However, I do not propose to direct release of these emails. The role of this Office is not to effectively act as a first instance decision maker. In the circumstances, it seems to me that the most appropriate decision to make is to annul the Board’s refusal, under section 15(1)(a) of the FOI Act, to grant access to any additional relevant records. I direct the Board to conduct a fresh decision-making process on the applicant’s request having regard to my findings as set out in this decision. If the applicant is not satisfied with the Board’s fresh decision, she will have a right to apply for an internal review of that decision and ultimately, to apply for a fresh review by this Office.
For the benefit of the applicant, I wish to note that the scope of her request remains limited to correspondence sent by the Board and/or the named staff member to either the OGP or company A. It does not include emails or replies from the OGP or company A. It is open to her to make an FOI request for those records should she wish to seek access to them.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Board’s decision. I find that the Board was not justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records coming within the scope of the applicant’s request of 20 July 2023 relating to a complaint made under the Dignity at Work Policy 2015. I direct the Board to make a fresh decision-making process on the applicant’s request.
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