Case number: 150372

Whether the Department was justified in its decision to refuse access to further records sought by the applicant in connection with matters relating to him on the ground that they do not exist or cannot 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

The applicant submitted a detailed request to the Department on 9 July 2015 for all records relating to him held by the Department, all correspondence relating to specified addresses, and specific correspondence relating to a certain family law matter and/or a land registry matter. The Department issued a decision on 30 July 2015 in which it directed the release of 51 records it identified as being within the scope of his request. All of the records had been created on foot of a previous FOI request made by the applicant in July 2014. The Department stated that no other records relating to the applicant existed.

The applicant sought an internal review of the Department's decision on 6 August 2015, in which he stated that he did not believe that the searches performed for records within the scope of his request were sufficiently thorough. The Department issued its internal review decision on 27 August 2015 in which it affirmed its original decision. The applicant sought a review by this Office of the Department's decision on 29 October 2015.

I note that Mr Art Foley of this Office wrote to the applicant on 12 February 2016, providing details of the searches the Department carried out for relevant records and of its record management practices in relation to records of the kind sought, and that he informed the applicant of his view that the Department had undertaken all reasonable searches for records within the scope of his request. The applicant disagreed with Mr Foley's view, and stated that he was dissatisfied with the manner in which this Office performed it's review of the Department's decision. I consider it appropriate to bring this review to a close at this point through the issue of a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the Department, and to the correspondence between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access to further records coming within the scope of the applicant's request on the ground that no such records exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records 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 such cases 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 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 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)

The Department, in its submission to this Office, provided details of the searches it undertook in order to locate the records sought by the applicant. Mr Foley has provided the applicant with details of the searches performed by the Department, as I have outlined above. While I do not propose to repeat those details in full in this decision, I confirm that I have had regard to them for the purposes of this decision.

In summary, the Department stated that on receipt of the applicant's FOI request, all staff in the Department were contacted seeking records within the scope of the applicant's request. It stated that further detailed searches were performed in the Taoiseach's Constituency Office and Private Office for records within the scope of the applicant's request. The searches for records were performed primarily electronically, with physical searches also being performed in certain locations. 51 records were located by the Department on foot of these searches, relating to the processing of a previous FOI request, and other associated correspondence. These records have been released in full to the applicant. At internal review, the Department issued an email to all staff requesting that any records within the scope of the applicant's request be located. No further records were located as a result of these searches.

One of the records that was released to the applicant notes that the Department holds copies of correspondence with the Department of Justice relating to a property registration issue in Mayo (as reported in the Sunday Independent on 28 October 2012, and the Irish Independent on 29 October 2012) but that the correspondence does not relate to the applicant or to the matters identified by the applicant. Mr Foley of this Office visited the Department to inspect those records and is satisfied that they do not come within the scope of the applicant's request.

While the applicant remains strongly of the view that the Department holds relevant records, it appears that this view is based solely on assumptions he has made concerning the published articles referred to above. He has presented this Office with no evidence to suggest that the Department holds the records he is seeking. Having considered the submissions of both parties, the steps taken by the Department to locate records, and the fact that the correspondence referenced by the applicant relates to third parties other than the applicant, I am satisfied that the Department has taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the Department's decision to refuse the applicant's request for further records under section 15(1)(a) of the FOI Act was justified on the basis that the records sought do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department.

Right of Appeal

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.


Stephen Rafferty
Senior Investigator