Decision
Ms A and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-153571-X1Y7W1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153571-X1Y7W1
Published on
Whether Tusla was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to meetings arranged with the applicant, on the basis that no further records exist or can be found
6 March 2025
In a request dated 12 May 2024, the applicant sought access to all records relating to meetings Tusla claimed it had arranged with her but which Tusla claim she did not attend.
Due to an administrative error, which Tusla outlined in its submissions to this Office, the applicant did not receive a response to her request in the timeframe prescribed in the FOI Act. On 12 September 2024, Tusla part-granted the applicant’s request and provided her with copies of text messages with the personal information of other individuals redacted under section 37(1) of the FOI Act. On 19 September 2024, the applicant requested an internal review of Tusla’s decision, saying the records provided to her relate to her daughter, not to herself. On 11 October 2024, Tusla affirmed its original decision and refused access to further records which the applicant contends ought to exist, under section 15(1)(a) of the FOI Act. Tusla said that a record of call logs on the phone used to contact the applicant is no longer available as the relevant mobile phone had been replaced. On 11 November 2024, the applicant applied to this Office for a review of Tusla’s decision.
During the course of this review, Tusla released relevant diary entries it located to the applicant, with the personal information of other parties redacted. The Investigating Officer provided the applicant with details of the Tusla’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which she duly did. The applicant has not disputed the redactions made by Tusla in the records it released to her.
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 the applicant and by Tusla in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The applicant maintains that further records ought to exist. Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to further records, other than those which it has released, under section 15(1)(a) of the Act, on the basis that no further 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 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.
Tusla provided this Office with details of the searches it carried out to locate the records sought in this case, details of which were provided to the applicant. While I do not intend to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this review.
Tusla said it contacted the relevant social worker who provided screenshots of text message she said she had sent to the applicant using the phone number she understood to belong to the applicant. Tusla said it processed these copies of text messages and provided them to the applicant, only redacting personal information of individuals other than the applicant. The relevant social worker said files are held on an electronic filing system, however, she said she could not identify relevant case notes of meetings with the applicant or about the applicant. She concluded that there were no further records other than the images of text messages already released to the applicant.
Tusla said that, following the initiation of a migration process of its ICT platforms in July 2021, all staff received new mobile phones and laptops and data was migrated to new devices. Tusla’s ICT department said the mobile phone related to this case was returned to head office and wiped as per its policy. Tusla went on to say that its ICT department explained that during the migration process the phone user’s Contacts was the only application transferred to the new devices for all users. It said it retained text messages and photos by special request only. With respect to the relevant devices/ users in this case, Tusla said this request was not made to the ICT Migration team at the time of migration and therefore this data was not transferred to the Social Worker’s newly issued mobile device. Tusla said that, as part of its data policy, call logs should be manually entered to its systems, but mobile phone log data is not downloaded to its internal records system. It concluded that the only records relating to the request were the images of the text messages released to the applicant.
Tusla said it carried out a number of searches of the relevant electronic case files and did not identify any records of correspondence with the applicant relating to meetings Tusla arranged with her but that she did not attend.
Tusla said the relevant social worker also identified diary entries that it considered may be related to the request. Tusla said it decided against release of these records as it could not be certain what the records referred to and argued they were outside of the scope of the request. In response to further queries from this Office, Tusla provided further statements from the relevant social worker stating that the diary entries and the screenshots of text messages are the only records she is in possession of and said the diary entries relate to the applicant and are in reference to the same meetings that are referenced in the text messages. Tusla subsequently released copies of these diary entries, with any personal information of other individuals redacted.
As noted above, the applicant was provided with details of the searches carried out by Tusla to identify and search for records relating to her request. The Investigating Officer invited her to make further submission, which she duly did. The applicant believes the records released to her relate to her daughter, said Tusla did not contact her with respect to the meetings it says she did not attend, and believes there ought to exist records relating to the meetings Tusla said she did not attend.
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. Furthermore, 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 Tusla has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why it is unable to locate any further relevant records. In the circumstances, I find that Tusla was justified in refusing access to further records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision to refuse access to further records sought by the applicant 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.
Richard Crowley
Investigator