Case number: 180376

Whether the Department was justified under section 15(1)(a) of the FOI Act in refusing access to a record relating to the role of an Appeals Board

19 December 2018

Background

This case arose out of the applicant's application to the Department in relation to certain service.  On 1 July 2018, the applicant submitted a request to the Department for all records containing details of what the Appeals Board regards as an applicant's "initial appointment".  In particular, the applicant referenced an internal Departmental email dated 6 May 2014 that discussed this topic.  He highlighted a paragraph headed "Appeals Board Role" and noted that the paragraph appeared to be copied from another source.  He wished to have access to any other record that contained this paragraph.  On 25 July 2018, the Department stated that the decision on the applicant's request had been included in the response to a separate request made by the applicant.  It stated that access was refused on the basis that there was an ongoing request for legal advice on this issue and that documentation being considered would not be made available until any legal advice issued.  The applicant sought an internal review of that decision, noting that the decision had not cited any section of the FOI Act.  On 30 August 2018, the Department made an internal review decision refusing access on the basis that the records concerned do not exist.  The Department relied on section 15(1)(a) of the FOI Act in this regard.  The applicant subsequently sought a review by this Office of the Department’s decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the Department’s correspondence with the applicant on the matter and to the correspondence between this Office and both the applicant and the Department on the matter as well as to the provisions of the FOI Act.  

Scope of the Review

During the course of this review, the Investigator asked the applicant to clarify the scope of his request.  

As a result of his clarification, this review is concerned solely with whether the Department was justified in refusing access to any record containing the last paragraph of the email dated 6 May 2014 under section 15(1)(a) of the FOI Act on the ground that no records within the scope of the request exist or can be found after reasonable searches have been carried out.  

Analysis and Findings

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

The applicant stated that the initial decision of the Department indicated that records did exist, as access was refused because legal advice was pending.  He stated that he believed that the Department should explain why it said the document referred to was part of the submission for legal advice and then subsequently said that it does not exist.  He also wished the Department to state whether or not the document existed at the time the email was written in May 2014 and that it should explain what has happened to it since then.  He further stated that if it did not exist at the time the email was written then the Department should explain why it referred, or appeared to refer, to a non existent policy document.  

I should explain that the FOI Act confers a general right of access to records rather than a general right of access to information.  This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought.  In other words, the Act does not provide for a right of access to records which, arguably, ought to exist.  While on occasion a public body may decide to create or compile information in response to an FOI request, this is beyond what is required by the FOI Act and the Information Commissioner has no power to require a public body to do so.  It is also outside the remit of the Commissioner to adjudicate on how public bodies perform their functions generally.  This review is therefore concerned with whether or not the Department has taken all reasonable steps to search for any record containing the last paragraph of the email dated 6 May 2014 and does not have jurisdiction to compel the Department to provide the clarifications and/or explanations sought by the applicant.            .

In submissions to this Office, the Department provided details of the searches conducted to locate the record sought by the applicant. It stated that the author of the email no longer works in the Department and was therefore unavailable to discuss it.  However, the recipient of the email was contacted and this person expressed the view that if the last paragraph had been a quote that it would either have been identified as such or would have appeared in inverted commas.  The Department stated that it was the inference of the applicant that this paragraph was a direct quote and it is the Department's position that it is not.  It stated that "it is simply a paragraph setting out a summary of criteria which staff should use in adjudicating on any application received in the Department where the applicant may have been employed in both the Primary and Post-Primary sectors."  The Department went on to note that all documents in the area, both written and electronic, relevant to incremental credit have been searched and that no record containing such a quote was located.  

Having considered the Department's submission, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of any relevant record coming within the scope of the request. I find, therefore, that the Department was justified in refusing access to any such record, if such a record exists, on the ground that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department.  I find it was justified in its decision to refuse access to any record relevant to the applicant's request under section 15(1)(a) of the FOI Act.

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.


Elizabeth Dolan
Senior Investigator