Case number: 150004

Whether the Services was justified in its decision to refuse access to further records relating to the applicant held by the Occupational Health Service 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

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 4 November 2014, the applicant submitted a request to the Services for "all information held on me within the [a named department]". On 28 November 2014 the Services released 79 records in total to the applicant, 74 records in full, with a further five records subject to redactions in order to protect the personal information of third parties. The applicant, on 8 December 2014, sought an internal review of this decision as he was not satisfied that all relevant records had been released. On 19 December 2014, the Services issued an internal review decision affirming its original decision. On 6 January 2015, the applicant sought a review by this Office of the Services' decision.

Mr Art Foley of this Office informed the applicant, by emails dated 12 March and 27 March 2015, of the searches undertaken by the Services to locate all relevant records and of its responses to queries raised arising from the applicant's concerns. In his emails to the applicant he outlined his view that the Services' refusal to grant access to further records on the grounds that no further records exist or can be found was justified and he invited the applicant to make further comments if he disagreed with his view. The applicant, in his correspondence with this Office, stated that he was extremely unhappy at the manner in which previous FOI requests and other matters were administered by the Service, and that other records should exist, relating to a work related injury suffered in June 2010. I have decided, therefore, to conclude this review by way of a formal binding decision.

In carrying out this review, I have had regard to the correspondence between the Services and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and to communications between this Office and the Services. Finally, I have had regard to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with the question of whether or not the Services was justified in its decision to refuse access to further records coming within the scope of the applicant's FOI request on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts, in accordance with section 15(1)(a) of the Act.

Preliminary Matters

During the course of this review, the applicant indicated that he was extremely unhappy with the manner in which a previous FOI request he had made with the Services was administered. The Services have apologised to the applicant for errors in the manner in which they have administered previous FOI requests. However, this Office is concerned with the manner in which his current FOI request was dealt with, and it is not within our remit to comment on the manner in which his previous request was conducted. Furthermore, this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

Regarding the applicant's contention that records ought to exist, specifically relating to an injury he suffered in June 2010, the Commissioner is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist.

Analysis and Findings

The Service's position is that the requested records do not exist or cannot be found. Accordingly, section 15(1)(a) of the FOI Act is relevant.

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

This Office's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

In a submission to this Office dated 4 March 2015, the Services provided details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request. Furthermore, the Services, in response to certain queries raised by the applicant in the course of this review, has provided details of why a Back-to-Work form identified by the applicant was not released as a result of his request. As I have outlined above, Mr Foley of this Office has provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

The position of the Service is that it cannot find any further records relevant to the applicant's FOI request. While the applicant may not be satisfied with the Service's responses, he has provided no supporting evidence to suggest that other records do, indeed, exist. Having reviewed the steps taken by the Services to locate the records at issue, I am satisfied that the Service has taken all reasonable steps to locate any further records. I find, therefore, that the Service's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby affirm the decision of the Brothers of Charity Services to refuse access to the records in accordance with section 15(1)(a) of the Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal 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