Case number: 150188

Whether the Ombudsman's Office was justified in its decision to refuse access to certain records relating to comments made by the Ombudsman in connection with a specified European Court of Justice ruling on the ground that no such records exist

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 30 January 2015, the applicant submitted a request to the Ombudsman's Office for certain records relating to comments made by the Pensions Ombudsman to the media after the announcement of a European Court of Justice (ECJ) ruling in the Waterford Crystal Pension case, including the record of the Ombudsman's comments, material used to inform the Ombudsman's analysis and conclusions, material considered by the Ombudsman in his analysis of the judgment, and records of contacts between the Ombudsman's Office and other bodies in relation to the impact of the judgment. On 4 February 2015 the Ombudsman's Office refused the applicant's request, on the basis that no records of the kind sought exist.

On 5 February 2015 the applicant requested an internal review of that decision and on 9 February 2015 the Ombudsman's Office issued its internal review decision, upholding the original decision. The applicant sought a review by this Office of the Ombudsman's Office's decision on 18 June 2015.

I note that Mr Art Foley of this Office wrote to the applicant on 4 August 2015 to inform him of his view that the Ombudsman's Office was justified in refusing the request access to the records sought and invited the applicant to make further comments if he disagreed with this view. Following further correspondence, the applicant indicated, on 14 August 2015, that he required a binding decision on the matter. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Ombudsman's Office and the applicant as set out above. I have also had regard to communications between this Office and the applicant, and to communications between this Office and the Ombudsman's Office on the matter.

Scope of Review

This review is concerned solely with whether the Ombudsman's Office was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the FOI Act, on the ground that the records sought do not exist.

Preliminary Matters

During the course of this review, the applicant has made clear to this Office his dissatisfaction with the record management practices of the Ombudsman's Office. The applicant believes that records of the type sought should exist and be retained by the Ombudsman's Office, and that the Ombudsman's Office's failure to create and retain records of the kind sought by him is a risk issue for that Office. The applicant argued that any State body following good governance models would maintain a careful record of everything that body issued to the media in any form. As Mr Foley of this Office has explained to the applicant, this Office's remit does not extend to commenting on the manner in which an FOI body performs its functions generally, or to investigating complaints against an FOI body.

I should also explain that while the FOI Act provides for a right of access to extant records held by FOI bodies, it does not provide for a right of access to records that a request considers ought to exist, nor does the FOI Act oblige any FOI body to create a record in circumstances where a record does not exist or cannot be found, even if it is acknowledged that such a record ought to exist.

Analysis and Findings

The Ombudsman's Office stated that it does not hold any records within the scope of the applicant's request. Therefore, 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 refuse 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 such cases 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 or 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 FOI body, on the basis of which the FOI 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 22 July 2015, the Ombudsman's Office provided details of the searches it undertook in order to locate records coming within the scope of the applicant's request, and of its records management practice in relation to records of the type sought by the applicant. I note that Mr Foley of this Office has provided the applicant with those details. 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.

In essence, the Ombudsman's Office stated that it does not record the Pensions Ombudsman's statements to the media, and that no record of material used to inform the Ombudsman's statements to the media at the time of the judgment exists as his statements on the matter were based on his considerable knowledge gathered through his experience in the pensions industry. The Ombudsman's Office further stated that no communication took place between the Ombudsman's Office and other bodies suggested by the applicant as regards the impact of the ECJ judgment. The Administration team within the Ombudsman's Office has determined that no record of communications by phone, email or otherwise exist between the Pensions Ombudsman and any third party in relation to the ECJ judgement. A search was performed of Mr Kenny's email for records within the scope of the applicant's review and no records of this kind were found.

During the course of the review, the applicant sought clarification as to whether the Ombudsman's Office received legal advice in relation to the ECJ judgment. The Ombudsman's Office stated that no such legal advice was received by it in relation to the judgment.

Having considered the submissions of both parties, and the explanations furnished by the Ombudsman's Office with respect to the records sought by the applicant, I am satisfied that the Ombudsman's Office has taken all reasonable steps to locate the records within the scope of the applicant's request, and furnished reasonable explanations as to why the records sought by the applicant do not exist. I find, therefore, that the Ombudsman's Office decision to refuse the applicant's request for records under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Ombudsman's Office to refuse the applicant's request under section 15(1)(a) of the FOI Act, on the ground that the records sought do not exist.

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