Decision
Mr X and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-144981-Z6M3N9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144981-Z6M3N9
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any forms allegedly signed by or provided by the applicant in relation to a visa application by a third party on the basis that no such records exist or can be found
30 April 2024
In a request dated 30 July 2023 the applicant made an initial request for any documents, forms, emails and correspondence containing his name sent to immigration support and related departments since 1 January 2022. On 24 August 2023, the Department issued a decision to the applicant and released a number of records to him. On the same date, the applicant emailed the Department and said it had not sent him any documents, forms or correspondence containing his name. He said he is looking for copies of any forms allegedly signed by him or provided by him in relation to a specific visa application by a named individual. On 25 August 2023, the Department acknowledged the applicant’s email and said it would deal with this as a new FOI request.
On 27 September 2023, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found. On 30 September 2023, the applicant requested an internal review. On 12 October 2023, the Department affirmed its original decision. On 2 January 2024, the applicant sought a review by this Office of the Department’s decision.
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 parties during the course of this 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 the applicant's request for copies of any forms allegedly signed by him or provided by him in relation to a specific visa application by a named individual under section 15(1)(a) of the Act on the ground that no such 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. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
In its submissions to this Office, the Department provided details of the searches it carried out to locate the records sought by the applicant. It also explained why it concluded that it does not have any relevant records.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. As noted above, the records sought by the applicant in this case relate to a third party visa application. In the circumstances of this particular case, section 25(3) of the Act prohibits me from providing a description of the searches carried out by the Department and of its rationale for concluding that it holds no relevant records. Having had regard to the submissions provided to this Office, I am satisfied that the Department carried out all reasonable searches in an effort to locate the records sought by the applicant. Accordingly, I find the Department was justified in refusing the applicant’s request under section 15(1)(a) of the Act on the basis that no relevant records exist or can be found.
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 Act on the ground that the records sought do not exist or cannot 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