Decision
Ms. Y and The Department of Health
From Office of the Information Commissioner (OIC)
Case number: OIC-157037-R7C9K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157037-R7C9K7
Published on
Whether the Department was justified in refusing access to records relating to Wind Energy Ireland's (WEI) use of the official government logo, under section 15(1)(a) of the FOI Act, on the grounds that no further records exist or could be found
3 July 2025
In a request dated 21 January 2025, the applicant sought access to the following records created, received or sent between 1 January 2024 and 31 May 2024:
• All correspondence (including emails, letters, meeting notes, and any other written communications) to and from Wind Energy Ireland and specifically those regarding the use or misuse of the official government logo, the harp.
• Any internal departmental correspondence or memos discussing or referencing Wind Energy Ireland's use or misuse of the government logo.
• Records detailing any advice, warnings, or instructions issued to Wind Energy Ireland in relation to the use of the government logo.
On 22 January 2025, the Department refused the request under section 15(1)(a) of the FOI Act on the grounds that no records could be found and there was no indication that such records ever existed. On the same day, the applicant requested an internal review of the Department’s decision, stating it had failed to address her request and did not provide an adequate explanation of the reasonable steps taken to identify all relevant records. On 20 February 2025, the Department varied its original decision and released two records to the applicant.
On 27 February 2025, the applicant applied to this Office for a review of the Department’s decision. She stated that key records were missing from what the Department released, including internal emails and interdepartmental correspondence. The applicant also said that the reasoning the Department provided for its position that all relevant records had been provided was inadequate. In her submissions to this Office the applicant noted a typo in her original request where she said, “internal departmental ” which she said should have read ‘inter departmental’.
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 Department and the applicant. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is solely concerned with whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records falling within the scope of the applicant’s 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 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.
Department’s submissions
In its submissions to this Office, the Department said that it liaised with the Environmental Health Officer, the Climate Officer, as well as the Food and Environmental Health Unit regarding the request. It said it also consulted the Minister’s Office in relation to a representation which the applicant had submitted to the Department previously. The Department stated that these discussions included the relevant staff conducting a preliminary search using keywords related to the request to see if they had any records relating to it, consulting with staff who work in areas relevant to the request to inquire if they were aware of any possible records relating to it, and crosschecking with other staff flagged as potentially relevant. The Department said it used the following keywords: “Wind Turbine ”, “Wind Energy ”, “EMF ”, as well as the applicant’s name. The Department said that electronic searches were carried out through the internal archives system, emails, and other systems using these key words.
At the internal review stage, the Department said that the relevant staff were liaised with again to re-check whether records relating to the subject(s) of the request were held by the Department. It said that a preliminary search was again conducted, considering all relevant key points raised by the request. The Department said that a representation received from the applicant previously was then determined to be of relevance. Through this process, the Department stated that the only records which it held of any relation to the subject(s) of the request were the representation received by the Minister’s Office from the applicant, as well as the correspondence that was issued in response to this. These were the records released upon completion of the Internal Review. The Department said that inter departmental correspondence was considered in the searches, but no further records were found. No hard copy record searches were carried out.
Applicant’s submissions
The applicant was then provided with an update from the Investigating Officer on the Department’s submissions and was invited to make submissions of her own, which she duly did.
The applicant provided this Office with records of emails from the Department, the Climate Action Unit, and the Chief Medical Office (CMO) which she said confirm that the records she is seeking may exist. She stated that the emails potentially point to the existence of further records of correspondence between the Department and the Department of Enterprise & Trade, Department of the Taoiseach and the Department of the Environment, Climate, and Communications. The applicant said the correspondence includes mention of communications with WEI regarding the use of the Government harp / Department of Health logo.
The applicant also stated that the Department’s original decision was issued just 24 hours after it received her request. She said this raises concerns over whether the Department conducted a thorough and reasonable search for the records in her request.
The Investigating Officer put the applicant’s points to the Department and asked it if they suggested that further records within the scope of the applicant’s request may exist. The Department said that, in light of the contents of the emails provided by the applicant, it is willing to reconsider the case and conduct a new search and retrieval process for records related to the applicant’s original request.
In light of the submissions in this case and the Department’s revised position, I simply cannot find that the Department was justified in its decision to refuse access to further records falling within the scope of the applicant’s request under section 15(1)(a) of the Act. Accordingly, I direct the Department to consider the applicant’s request afresh. The applicant will have a right to an internal review and to seek a review by this Office if necessary.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision and direct it to undertake a fresh decision-making process in respect of the applicant's request, in accordance with the provisions 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.
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Richard Crowley
Investigator