Decision
Mr K and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-151930-H0W8H6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151930-H0W8H6
Published on
28 January 2025
In a request dated 2 August 2024, the applicant sought access to a copy of all complaints made to the Department against him. He provided details of his Herd Number. On 14 August 2024, the Department refused the request under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found. On 15 August, the applicant sought an internal review of that decision. He said he was aware that a hand written letter dated 3 July 2024 had been sent to the Department. He said an agent from the Department walked his farm lands on 2 August 2024 after receiving documentation from the Department’s Offices in Portlaoise. On 3 September 2024, the Department affirmed its refusal of the request under section 15(1)(a). It said records held by the Regional Veterinary Office do not include the correspondence referred to by the applicant. On 10 September 2024, the applicant applied to this Office for a review 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 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, under section 15(1)(a) of the Act, the applicant’s request for a copy of all complaints made against him.
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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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.
In its initial submissions to this Office, the Department provided details of searches undertaken to locate records held by its Regional Veterinary Office (RVO). Following an enquiry from this Office, the Department said that it did not know if any other area of the Department may hold relevant records.
The applicant subsequently provided this Office with a copy of correspondence he received from the Department arising from the inspection carried out at his lands. This correspondence stated that a complaint had been made by a member of the public to the Integrated Controls Division (ICD) Headquarters in Portlaoise and that an inspecting officer from the ICD Office had called to his property on 2 August 2024.
Following receipt of the applicant’s submissions, the Investigating Officer asked the Department about the record provided by the applicant. In reply, the Department said the Integrated Controls Division confirmed it has two complaints on record. It said the Department will not be releasing these records in accordance with sections 35(1)(a) and 42(m) of the FO1 Act. No reasons were provided by the Department about why these exemptions apply.
My Analysis
As noted above, the Department refused the applicant’s request under section 15(1)(a) of the Act on the basis that the records sought do not exist or cannot be found, and the applicant sought a review of the Department’s decision to refuse his request on this basis. It is clear from the submissions to this Office that the Department originally limited its searches to records held by the Regional Veterinary Office and that it has now located records which fall to be considered. I am satisfied that the Department did not take all reasonable steps to locate the records sought by the applicant. Accordingly, I have no basis on which to find the Department’s refusal of the request was justified under section 15(1)(a) of the Act. In regard to the records located by the Department during the course of this review, it is not the role of this Office to effectively act as a first instance decision maker. In the circumstances, it seems to me that the most appropriate course of action for me to take is to annul the Department’s decision on the applicant’s request and to direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and 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. I find that the Department was not justified in refusing the request under section 15(1)(a) of the FOI Act and I direct it to make a fresh decision on the applicant’s FOI request.
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