Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-152278-W3T7G5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152278-W3T7G5
Published on
Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s request, on the ground that no further records exist or can be found, after having taken all reasonable steps to locate the records sought
27 June 2025
On 2 September 2024, the applicant submitted an FOI request to the Department for:
(1) all correspondence she sent or received from the Department’s grant section between January 2015 and July 2021. (The applicant provided the names of two staff in the Department who she had corresponded with during this time);
(2) any official document or agricultural grant claim between January 2015 and July 2021 that contains the applicant’s name; and
(3) any correspondence and discussion between relevant staff regarding why the Department refused to address any queries the applicant had about grants payments, between 1 January 2020 and 31 July 2021.
On 18 September 2024, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act. The Department said that the individuals specified in the applicant’s request have not worked for the Department for a number of years. On the same day, the applicant applied for an internal review of the Department’s decision. She said she found it difficult to believe that the Department could find no correspondence or information in relation to her request which spans six years. The applicant said it is irrelevant that the named staff members no longer work in the grants section and said that staff members have a duty to record their work within the section they work. The applicant also queried the Department’s decision not to answer her queries in 2020/21.
On 23 September 2024, the Department issued its internal review decision and released one record to the applicant which it said was located during further searches it carried out. The Department said all emails over 2 years old are deleted permanently from individual user corporate mailboxes and will be unrecoverable from those mailboxes. Furthermore, the Department said that under its record retention policy former employees have their email and personal drive deleted permanently 24 months after their employment termination date.
On 24 September 2024, the applicant applied to this Office for a review of the Department’s decision. In her application to this Office, the applicant raised concerns about the Department’s record retention policies and said she believed it contradicted the Department’s policy by which it states all staff records after 1995 can be requested. Furthermore, the applicant claimed the fact that the record the Department had released to her at internal review was from 2019 contradicted the Department’s retention policy.
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 exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which she duly did.
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 the Department and the applicant during the course of 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, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s request on the basis that no further records exist or can be found.
Before I address the substantive matters arising, I wish to make a number of preliminary comments.
In her submissions to this Office, the applicant contends that the Department’s record retention policy contradicts its statement that “all staff records after 1995 can be requested.” The applicant provided this Office with a screenshot of the policy she was referring to. It transpires that this screenshot was from the Agricultural Appeals Office website, which is a separate entity from the Department. In any event, I note that the applicant’s reference to the policy in question simply refers to the type of record that may be accessed under FOI. While a request may be made to access records held by the Department since it became subject to the FOI Act on 21 April 1998, this does not require the Department to retain every record it held since this date. In any event, section 15(1)(a) of the Act provides for situations where records cannot be found or no longer exist.
Secondly, in her submissions to this Office, the applicant said that she previously requested records from the Department in 2016 which dated back to 2000. She said the Department did not refuse those records due to its records retention policy and never referred to its record retention policy in response to any of her previous FOI requests. In an effort to provide the applicant with clarity regarding the Department’s record retention policies, the Investigating Officer asked the Department when its record retention policies came into effect. In response, the Department stated that its current email retention policy was implemented in 2019. The Department also stated that its current document retention policy was implemented in March 2024. The Department said that whilst it is not able to access previous Record Retention policies, as the current version supersedes them, it can confirm that the March 2024 Record Retention policy- which relates to document record retention- was not the first record retention policy to be implemented by the Department, and instead was an updated version of a previous record retention policy. As such, the Department said that an earlier version of its Record Retention policy would likely have been in place in 2016, when the applicant’s earlier FOI request was made.
While I have noted the applicant’s comments, it is important to note that this review is concerned solely with whether the Department was justified, under section 15(1)(a) of the Act, in refusing access to the records sought by the applicant in her request dated 2 September 2024. This review is not concerned with whether records should exist, nor with the appropriateness of the Department’s records retention policies more generally, except insofar as they indicate the likely existence of records. Whether or not the Department informed the applicant previously about its record retention policy is immaterial to the review currently before this Office.
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. My 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.
In its submissions to this Office, the Department said that, owing to the nature of the applicant’s request and the records sought, the Direct Payments Division was identified as the relevant unit to process the applicant’s request. The Department said it carried out both electronic and physical searches for any records falling within the scope of the applicant’s request in the Direct Payments Division, and all units/sections within the Division. It stated that physical searches were carried out in its Main Building, Portlaoise, where the processing of the electronic files was carried out, as well as the Department’s storage facility in Portlaoise. The Department stated that physical searches were carried out for records using the applicant’s name, her address, and her father’s name, as well as searches carried out by year. Additionally, the Department stated that physical searches were carried out in the Basic Income Support for Sustainability (BISS) processing section, in its Main Building in Portlaoise. It stated that this is the section which deals with all applications for grant aid under the BISS scheme, and its predecessor the Basic Payment Scheme (BPS). The Department stated that all applications for BPS moved fully online in 2018. It said that the BPS ended in 2022, with BISS commencing in 2023. The Department stated that all applications for BISS are fully online. Finally, the Department stated that all filing cabinets and desks were searched during the course of attempting to locate records within the scope of the applicant’s request. It stated no records were located.
Additionally, the Department stated that it also carried out a number of electronic searches for records falling within the scope of the applicant’s request. The Department said that searches were carried out on the electronic File Sharing location for the Direct Payments Division. It said that key word searches were conducted using the information provided by the applicant, such as the applicant’s name, her address, and her father’s name. With regard to its electronic filing, the Department said that it assigns unique business identifiers- herd numbers- to farmers who submit applications for Direct Payment schemes. It said that every application is submitted under a Herd Number, or a Temporary reference number until it is linked to a herd number. The Department said that in addition to every application under the Direct Payment scheme having a herd number, it also includes the name and address of the applicant. The Department stated that, having conducted searches, its position is that the applicant is not a customer of the Department, and does not hold a Herd Number. It said that searches were conducted for records using the names and addresses provided by the applicant, and no such records were returned.
In its submissions to this Office, the Department provided details of its document retention policy and an email retention policy. The Department said that its email retention policy generally allows for a retention period of 2 years, but outlines that transitory emails may be deleted immediately or after administrative value is lost. The Department also stated it has a document retention policy, which relates to records held by the Department. It stated this retention policy was implemented in March 2024. The policy acknowledges that due to the wide-ranging activities taking place in the Department and the wide range of data held, it is not possible to have a single retention period for all Department data. As such, the policy outlines that a minimum 4-year retention period is recommended. The policy states that each Division should devise a dedicated record retention schedule, which is unique to the Division and the type of records it holds. The Department said the Direct Payments Division is in the process of creating such a policy, but that in the interim its record retention periods are derived from the Department wide policy i.e. a 4-year document retention period. The Department acknowledged that some email correspondence may have existed previously between the applicant and the two named staff members which was not saved to the Department’s electronic File Sharing location, and as such would have been destroyed in accordance with the Department’s data retention policies.
In submissions made during the course of this review, the applicant referred to three folio numbers- two of which she stated had active claims- which she deemed relevant to her request. In response to a subsequent query from this Office, the Department said it does not use Folio numbers, but rather that it uses the Land Parcel Identification System, which it said maps every land parcel in the State. The Department said it used the folio numbers provided by the applicant to identify the land parcel numbers that corresponded to the land within the folios provided, and then searched its internal systems for records falling within the scope of the applicant’s request using the relevant land parcel numbers. The Department said it found no applications under the applicant’s name.
In her submissions to this Office, the applicant said it was concerning that the Department stated that all records on files of previous employees, even if they worked in a department for twenty years, are destroyed by the department once the person leaves. The applicant queried how this was possible, and pointed to the fact that, based on her understanding, staff would normally put their correspondence in a filing system of some sort within the Department. The applicant stated that if correspondence was not filed, how could anyone track a case, claim, complaint, or any other type of correspondence- especially if the person moved to another Department.
In light of these queries, the Investigating Officer asked the Department whether all records on files- not just email accounts/personal drives- of previous employees are destroyed by the Department upon the staff member leaving the Department. In response, the Department stated that it does not destroy all records authored by a staff member which are on file when a staff member leaves the organisation. Instead, the Department stated that, per its record retention policies, records are retained for a set period of time in line with statutory obligations and business needs. The Department stated that some records- both emails and documents- may be retained for a longer period, if it is deemed necessary and in line with business needs. In relation to records falling within the scope of the applicant’s request, the Department said that detailed searches were carried out and its position is that no further records relating to the applicant’s request exist or can be found.
Finally, the applicant said she had sent an email to one of the staff members named in her FOI request in April 2024 and did not receive a non-delivery receipt from the email address in question. She queried why this was the case considering the Department had stated that the two staff members named in her FOI request had left the Department over 24 months before the date of her request. In response, the Department said that after 2 years, employees personal drives and emails are deleted. The Department provided this Office with a screenshot of the non-delivery receipt received upon sending a test email to the email account of the named staff member in question.
In summary, it is the Department’s position, having conducted detailed electronic and physical searches, that no further records relating to the applicant’s request exist or can be found.
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 are known to have existed cannot be found. 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 Department’s description of the searches it said it has undertaken,
• its explanation of its records management practices in respect of the type of records sought by the applicant,
• its reasons for concluding that no further records can be found or exist, and
• the absence of any evidence to suggest that further relevant searches might be warranted,
I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant.
Accordingly, while I acknowledge the applicant will be disappointed by my findings, I find the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records falling within the scope of the applicant’s request, on the grounds 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 the Department’s decision to refuse access to further records relating to the applicant’s request 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