Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-140798-G8F2V1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-140798-G8F2V1
Published on
Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant on the basis that no further records exist or can be found
19 April 2024
In a request dated 16 May 2023, the applicant sought access to all personal records and correspondence the Department has in relation to him for the period between 1 January 2017 to the date of his request. Using the Department’s FOI request form, he identified various areas within the Department from which he was seeking records, i.e. Basic Payments Scheme, Single Farm Payment, Greening, Entitlements, and Sheep Welfare Scheme. He also specified “Legal Department” as an area from which he was seeking records.
The Department issued three separate decisions as follows:
On 23 June 2023 the applicant sought an internal review of the Department’s decisions. He said that he had not received all relevant records. Among other things, he noted that no memos had been provided or copies of communications he had sent to the Department and related matter. The Department affirmed all three original decisions, in letters dated 14 July 2023 and 17 July 2023.
On 24 July 2023 the applicant sought a review by this Office of the Department’s decisions, wherein he said he was aware that there are a lot more records and he also noted that he had received no response from the Legal Department.
During the course of this review, the Investigating Officer 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, which he duly did. The Investigating Officer subsequently sought further clarifications from the Department, following which, on 15 January 2024, the Department released five additional records it located as a result of fresh searches within the Legal Services Division. The applicant again informed this Office that he was not satisfied that the Department had released all relevant records. Among other things, he argued that the Legal Division had not released its full file relating to him. This Office sought further clarifications from the Department on the matter, following which the Department said that having conducted relevant searches, the only records identified as relevant to the applicant’s request were those already released.
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, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
The Department’s position is that all relevant records held by the relevant areas of the Department have, at this stage, been released to the applicant and no further relevant records can be found or exist. This is, in essence, a refusal to release any other relevant records under section 15(1)(a) of the Act which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether the Department was justified in refusing, under section 15(1)(a) of the FOI Act, any further relevant records held by the relevant areas identified by the applicant in his request.
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. It is also worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.
As I have outlined above, the Department provided this Office with submissions detailing its reasons for concluding that no further records related to the applicant exist or can be found, details of which were provided to the applicant. The Department said the requested information covered a number of different divisions within the Department resulting in the request being split between decision makers who are responsible for different areas within the Department and have access to the records pertaining to the schemes/areas of the Department for which they are responsible. It said the initial decisions and internal review decisions issued to the applicant were solely in relation to Basic Payment Scheme, Single Farm Payment, Greening, Entitlements, and Sheep Welfare Division. As the Investigating Officer has previously provided the applicant with details of the specific searches undertaken in the relevant divisions, I do not propose to repeat those details here although I can confirm I have had regard to them for the purposes of this decision.
In essence the Department indicated that searches were carried out of its electronic systems, including emails, using the applicant’s herd number, name, and address, and of its physical files. It said all relevant individuals in each of the sections were consulted and each staff member from each section carried out the searches outlined. It said all available documents for the above-mentioned schemes and sections were provided, and fully comprehensive searches were conducted.
Having received details of the Department’s submissions, the applicant’s response comprised primarily of criticisms of the review process undertaken. However, he also identified specific records he argued should exist. Specifically, he said he had sent registered letters to the Department that had not been released and he referenced a meeting that took place on 26 July 2021 with staff members of the Department’s Legal Division. Apart from that, he provided no further information to indicate that other specific additional searches should have been undertaken by the various other sections where searches had previously been undertaken.
Following receipt of the applicant’s comments, the Investigating Officer sought the Department’s comments in respect of the registered letters and meeting in question. As I have outlined above, subsequent to receipt of those queries, the Department carried out additional searches following which it located five further records and issued them to the applicant on 15 January 2024. It said Legal Services Division had no records relating to the meeting that occurred on 26 July 2021.
The Investigating Officer contacted the applicant again following the release of the additional records and asked him if he could provide any further information that could assist in the event that he believed further relevant records should exist. In response, the applicant again argued that he had not received the full file and he again referenced the Legal Services Division. He said the Department had acknowledged in Court proceedings that the meeting had occurred. He also specifically referenced one page of an affidavit that was released to him and queried why the remainder of the affidavit had not been released. He also suggested that it was contrary to the spirit and intent of the FOI Act that he should be obliged to provide copies of correspondence that he had sent to, and should be held by, the Department’s Legal Services Division.
I should say here that it is entirely appropriate, in my view, that an Investigating Officer should offer an applicant an opportunity to provide relevant information that would assist the Investigating Officer in considering whether an FOI body had taken all reasonable steps to ascertain the whereabouts of relevant records or whether the evidence would support a finding that additional specific relevant searches should have been undertaken.
Section 12(1)(b) of the FOI Act obliges requesters wishing to exercise their right of access to provide sufficient particulars in relation to the information concerned to enable the relevant records to be identified by the taking of reasonable steps. It is helpful if requesters provide the FOI body with as much information as they can in order to assist the FOI body in ensuring that any searches it undertakes for relevant records are comprehensive. In our experience, a requester will often be in a position to provide information that will allow us to determine that further specific searches could reasonably have been taken by the FOI body. Moreover, while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, the corollary is that the legislation assumes reasonable behaviour on the part of requesters. As such, where an applicant has information that may assist us in pursuing the matter with the FOI body or may assist the FOI body in ascertaining the whereabouts of records, we expect the applicant to provide such information to us as early as possible during the review process.
In light of the applicant’s comments about not having received the full file from the Legal Services Division and the partial release of the affidavit, the Investigating Officer sought further clarifications from the Department on the matter. In response, the Department said that initially, no searches were carried out by the Legal Services Division as it has no direct dealings with the applicant nor any business dealings in its own right with the applicant. It said the Division instead provides legal support to the Department business areas engaged with the applicant. It said that as a consequence, any records held in Legal Services Division comprise only of interactions between lawyers in Legal Services and Officials working in the business area engaging with the applicant.
The Department added that a search was, however, subsequently carried out by Legal Services Division after correspondence had been forwarded to it by the FOI Unit specifically inquiring about whether records were held in Legal Services Division in relation to a meeting between the Department and the requester dated on 26 July 2021. It said the Lawyer who attended at that meeting confirmed that no records were held in Legal Services Division in relation to that meeting and that he confirmed that he neither created nor received any records in relation to that meeting. In relation to the references that had been made to letters the applicant had previously sent to the Department not having been released, it said that having undertaken a search for documents in Legal Services Division, the additional correspondence from the applicant was located which did not appear to have been previously released to him and this was sent to him on 15 January 2024.
The Department said its Legal Services Division carried out a search of documents held in Agriculture House. It said Lawyers working with the business areas that sought legal advice in relation to their dealings with the applicant conducted an electronic search of their email accounts. It said Legal Services Division moved from a paper-based filing system to an electronic-only filing system (eDocs) in May 2021. It said that as staff had been working remotely from early 2020 due to Covid-19, in effect all records created from then were electronic-only. It said eDocs is effective from March 2020, in that all files created between March 2020 and May 2021 were uploaded to its electronic filing system. It said a search was undertaken of its eDocs filing system using the applicant’s name and address.
The Department added that Legal Services Division maintains a database of older physical files opened in the Division before it moved to an electronic-only filing system with effect from March 2020. It said this database was searched for any files prior to March 2020 that related to the applicant. It said that having conducted those searches, the only records identified as being relevant to the FOI request were those released to the applicant on 15 January 2024. In a subsequent clarification, the Department said the records that were located and released in January 2024 in a hardcopy general file dealing with commonages and that there were no other relevant records within that file.
The Department further said that the Legal Services Division does, indeed, hold further records relating to the applicant in a litigation file. It said this file relates to a Judicial Review brought by the applicant in 2023 but that the records contained therein were created from July 2023 onward and therefore fall outside the scope of the particular FOI request which was for relate to records held by the Department from 1 January 2017 to the date of the request, namely 16 May 2023.
In relation to the affidavit referenced by the applicant, the Department said its Legal Services Division does, indeed, hold a copy of an affidavit dated 16 May 2019. It said the affidavit was exhibited by the applicant as part of Judicial Review proceedings he took against the Minister in 2023 and has only been held in the Legal Services since 11 July 2023, which is after the date range covered by the request and therefore falls outside the scope of the request. It said the affidavit does not form part of any other file held in Legal Services Division.
The FOI Act requires FOI bodies to takes all reasonable steps to ascertain the whereabouts of records sought. In this case, in considering whether the Department was justified in refusing access to additional records coming within the scope of the applicant’s request apart from those already released to date, the question I must consider is whether the Department has taken all reasonable steps to ascertain the whereabouts of all relevant records.
It is important to note that a review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. Moreover, 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. It is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. FOI bodies are not required to search indefinitely for records in response to an FOI request. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found.
While I can understand the applicant’s frustration at the Department’s initial failure to include the Legal Services Division in its original searches for relevant records, such searches have at this stage, been carried out within that division, following which additional relevant records were located and released. The applicant clearly believes the Legal Services Division should hold additional relevant records. I note, in particular, his concerns that no records were released relating to the meeting he attended on 26 July 2021. In circumstances where the Department has accepted that such a meeting took place, it is unsurprising that the applicant might expect the Department to have retained a record of that meeting. Nevertheless, the Departmental official from Legal Services Division who attended at the meeting confirmed that no records were held in Legal Services Division in relation to the meeting and that he neither created nor received any records in relation to that meeting. I would add that the appropriateness, or otherwise, of the failure of the Department to keep a record of the meeting is not a matter that I can consider in this review.
Having regard to the details of the searches undertaken to date and to the details of the Department’s explanation of its records management practices and of its reasons for finding that no other records can be found, I am satisfied that the Department has, at this stage, taken all reasonable steps to ascertain the whereabouts of all relevant records. The applicant has presented no evidence to suggest that specific additional searches should have been conducted, nor is it apparent to me that such additional searches might be warranted in this case
Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional records coming within the scope of the applicant’s request other than those released to date on the basis that no further records exist or can be found having taken all reasonable steps to ascertain their whereabouts.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the FOI Act, to any additional records coming within the scope of the applicant’s request other than those released to date on the basis that no further records exist or can 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.
Stephen Rafferty, Senior Investigator