Decision
Mr Y and The Department of Communications, Energy and Natural Resources
From Office of the Information Commissioner (OIC)
Case number: 150075
Published on
From Office of the Information Commissioner (OIC)
Case number: 150075
Published on
Whether the Department was justified in its decision to refuse access to a full and final version of the Sustainable Management of Interactions between Aquaculture and Wild Salmonid Fish (SUMBAWS) report sought by the applicant under section 15(1)(a) of the FOI Act on the basis that the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
On 28 November 2014 the applicant submitted a request to the Department for "the full and final report of the SUMBAWS Project". On 30 December 2014, the Department refused the applicant's request under section 15(1)(a) of the Act, on the basis that the record was not held by the Department. The Department stated in its decision that the report sought by the applicant was co-ordinated by St. Andrews University, Scotland, and funded by the European Commission.
The applicant sought an internal review of this decision on 12 January 2015, as he was not satisfied by the response of the Department. On 9 February the Department issued its internal review decision, upholding its original decision to refuse access to the record under section 15(1)(a) of the Act. The internal review decision of the Department stated that while the Department did not hold the record sought by the applicant, it would assist the applicant in refining his request in order to facilitate access to the records which were held by the Department, and made reference to correspondence exchanged between the parties in which this invitation was offered.
On 13 March 2015 the applicant sought a review by this Office of the Department's decision.
I note that Mr Art Foley of this Office wrote to the applicant on 16 June 2015 with details of the searches carried out by the Department to locate the record sought by him, and of the rationale employed by the Department in its decision that the "full and final" version of the SUMBAWS report was not held by it. Mr Foley informed the applicant of his view that the Department was justified in its decision, and invited the applicant to make further comments if he disagreed with this view. The applicant, in an email of 30 June 2015, stated that he remained of the opinion that the full and final version of the SUMBAWS report was held by the Department. The applicant had previously indicated, on 6 May 2015, that he wished this review to proceed to a decision. I therefore consider that this review should be brought to a close by issue of a binding decision.
In conducting this review, I have had regard to correspondence between the Department and the applicant. I have also had regard to communications between this Office and the applicant, to communications between this Office and the Department, and to the provisions of the FOI Act.
This review is concerned solely with whether the Department was justified in refusing access to the record sought by the applicant under section 15(1)(a) of the Act, on the basis that the Department has determined that the record is not held by the Department or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally. Furthermore, this Office is concerned with ensuring public access to existing records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist, nor does it place any obligation on a public body to create records in response to an FOI request.
The Department's position is that it does not hold the record sought by the applicant. Accordingly, section 15(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)
In a submission of 28 May 2015 to this Office, the Department provided details of the searches it undertook in an effort to locate the record coming within the scope of the applicant's request, and of its relevant record management practices. As I have outlined above, Mr Foley of this Office has provided the applicant with details of those searches and practices. While I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.
The Department has stated that the record at issue would have been retained within its Inland Fisheries Division. The Department has stated that all records within the Inland Fisheries Division were searched for the records at issue in this case, both physically and through the interrogation of the computer directories. The email accounts of present and former staff of the Division were searched for the record sought by the applicant. The Department has stated that as the Inland Fisheries Division is located in Cavan, it is unlikely that the record would have been misplaced in any other location. The Department has further stated that as the record would be considered "live", it is unlikely that any copy of the record sought would have been archived, destroyed, or placed in storage by the Department. Notwithstanding this, the Department has stated that the file storage location within the Inland Fisheries Division was searched to guard against this possibility.
In his correspondence with the Office, the applicant indicated he was not satisfied that the Department had refused his FOI request in relation the SUMBAWS report, as the Department was of the opinion that the version of the report it held was not the "full and final" version of the report the applicant was seeking.
In its submission, the Department outlined the reasons why it was of the opinion that the version of the record it held was not the "full and final" version of the report. The Department stated that it did not have any role in the drafting of the SUMBAWS report. The SUMBAWS report was coordinated by the University of St Andrews, Scotland, on behalf of the European Commission. A member of staff of Inland Fisheries Ireland (which at the time was the Central Fisheries Board) (as distinct from the Inland Fisheries Division within the Department) contributed to the report. While Inland Fisheries Ireland is an agency under the aegis of the Department, it is a separate FOI body for the purposes of the FOI Act.
The Department stated that, in 2009, it received a version of the SUMBAWS report from Inland Fisheries Ireland. The version of the report which the Department holds indicates that is a report prepared following the completion of Workpackage 7 of the SUMBAWS project. This version of the report had not, when received by the Department, been submitted to the European Commission. Furthermore, according to both the SUMBAWS and EU CORDIS websites, a subsequent Workpackage 8 of the project was completed. The Department stated that for these reasons, it considers that the version of the report which it holds is not the "full and final" version of the report sought by the applicant. The Department further stated that this version of the report is the only version which the Department holds.
I note that the Department advised the applicant, in its original decision, of the coordinators of the SUMBAWS project. Also, the Department, before it issued its internal review decision in this case, offered to discuss the release to the applicant of the version of the SUMBAWS report which it held. Furthermore, the Department, during the course of this review, offered to discuss the release of the version of the SUMBAWS report that it held. The applicant has not accepted these offers of assistance from the Department, and has persisted in his pursuit of a "full and final" version of the report, despite having been informed, in Mr Foley's letter of 16 June 2015, of the reasons why the Department considered that the version of the report which it holds is not a "full and final" version of the report.
The applicant, in the course of this review, provided this Office with records obtained under a separate FOI request, which would appear to indicate that a more complete version of the report is held by the Department of Agriculture and/or the Central Fisheries Board (now Inland Fisheries Ireland). Both the Department of Agriculture and Inland Fisheries Ireland (as distinct from the Inland Fisheries Division of the Department) are separate FOI bodies from the Department for the purposes of the FOI Act.
The applicant further submitted emails he received as a result of FOI requests he made to the Marine Institute and the Department of Agriculture, which relate to the issue of the SUMBAWS report. In his latest submission to this Office of 30 June 2015, the applicant specifically directed the attention of this Office to the emails he has received on foot of his FOI request to the Marine Institute, forwarded to this Office on 24 April 2015. The emails comprise of communications between the Department of Agriculture and the Department of Communications during 2009.
Attached to the emails is a version of the SUMBAWS report which is described in the second paragraph of an email of 13 July 2009 as final. However, the email subsequently states that the data for Workpackage 7 of the report is incomplete. I do not consider that an email which on one hand describes a report as final, while on the other hand states that the data contained in the record is incomplete, can be determinative of whether a report is complete or otherwise, or, indeed, of whether it is held by another Department.
The applicant has further submitted that as one of the printed emails indicates that an attachment, described as "SUMBAWS_Final_PDF_doc.pdf.TXT" was held by the Marine Institute, and it is his understanding that this is the version which is held by the Department (of Communications). It would appear, however, that this email thread originated in the Department of Agriculture, was sent internally within that Department, and subsequently forwarded to the Marine Institute. Again, in my view, this cannot be taken as being determinative of whether the Department holds a final version of the report.
The position of the Department is that it does not hold a copy of the "full and final" SUMBAWS report sought by the applicant. The Department has stated that it does hold an earlier copy of the report, which is not considered a final version of the report for the reasons outlined above. The Department has indicated, both during the course of this review and in correspondence with the applicant prior to the issuance of its internal review decision, its willingness to assist the applicant in obtaining this copy of the report. These offers have been rejected by the applicant. The remit of this Office extends to the provision of existing records in accordance with the FOI Act. It does not extend to the provision of records which ought to exist.
The applicant has stated that he remains of the view that a full and final version of the SUMBAWS report is held by the Department. However, having considered the submissions of both parties and the measures taken by the Department to locate the record sought by the applicant, I am satisfied that the Department has taken reasonable steps in its searches in order to locate the record at issue. I find, therefore, that the Department's decision to refuse the applicant's request under section 15(1)(a) of the Act was justified.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the record under section 15(1)(a) of the FOI Act, on the basis that it does not exist or cannot be found.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator