Case number: OIC-122817-Q9Y2J8

Whether the Department was justified in refusing access to records sought by the applicant in relation to forestry applications he had made

 

22 December 2023

 

Background

In a request dated 30 July 2021, the applicant sought access to records relating to a number of applications he had made to the Department’s Forestry Division in his capacity as a professional forester. The applicant divided his request into nine categories of records (relating to a total of 11 different forestry applications), as follows:

  1. All Forestry Division records regarding application TFL00456820
  2. All Forestry Division records regarding application TFL00289119
  3. All Forestry Division records regarding application NWS1104
  4. All Forestry Division records regarding application NWS1110
  5. All Forestry Division records regarding application NWS1115
  6. All Forestry Division records regarding application NWS1094
  7. All Forestry Division records regarding application CN07-FL0019
  8. All Forestry Division records regarding a “specific IT issue which took some weeks to rectify” (as referenced in correspondence from the Department) that the applicant stated significantly delayed payment in relation to applications CN51525, CN56608, and CN58188
  9. Any examples held by the Forestry Division of a “Forest Road Construction Method Statement”, as referenced in application CN81642.

On 7 September 2021, the Department part-granted the request, releasing categories 1-6 and 8 of the records in full, as well as part-releasing category 7 with redactions made under section 37(1) of the FOI Act. The Department refused access to the final category of records under section 15(1)(a) of the FOI Act.  On 11 March 2022 the applicant sought an internal review of the Department’s decision, in the course of which he queried the amount of records that had been released and argued that additional records ought to exist that had not been supplied. On 14 April 2022, the Department affirmed its original decision. On 28 April 2022, the applicant sought a review by this Office of the Department’s decision.

As noted above, the Department cited section 15(1)(a) regarding category 8 of the records. This section of the FOI Act relates to records that do not exist or cannot be found. In his request for an internal review, the applicant argued that additional documentation should exist across all categories of his request, and not just the final category in respect of which the Department explicitly cited section 15(1)(a).  In its internal review decision, the Department stated in relation to this claim that it had reviewed the records compiled in response to the request and could find no further records other than those already released. I formed the view that this amounted to an administrative refusal under section 15(1)(a) of this aspect of the applicant’s request as a whole (and not just in relation to the final category of records sought). As the Department did not explicitly cite section 15(1)(a) except in the context of the final category of records, I sought additional submissions from it on this point. I also sought submissions from the applicant. Further submissions were made by both parties and have been considered fully.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In doing so, I have had regard to the correspondence exchanged between the parties, the applicant’s comments in his application for review and the submissions made by both parties.  I have also had regard to the contents of the records.  I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matter

In the applicant’s appeal to this Office and associated submissions, he asked a number of specific questions arising from applications he had made to the Department. These included questions seeking information about particular Department procedures, the identities of individual Department staff members, the metadata of certain records and whether particular actions were taken on certain of his applications. The applicant also specified that he wished to be provided with “a detailed timeline” in respect of certain matters. I wish to note that I did not consider it appropriate to follow up with the Department in relation to these specific questions and requests for information. The FOI Act enables access by requesters to information contained in records that are held by an FOI body. Generally speaking, it does not entitle a requester to have specific questions answered and does not require an FOI body to create new records. Moreover, as these matters were not raised in the applicant’s initial FOI request, it seems to me that they are outside the scope of the request and of this review.

In addition, I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the Department dealt with the substantive issues of his forestry licence applications, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of same.

I also wish to address an additional matter that the applicant raised, specifically that the records provided in response to his FOI request were not numbered, in sequence, or correctly scheduled. It should be noted that the FOI Act does not require the preparation of a schedule and that this Office has no role in requiring the production of schedules, or in reviewing their contents. This being said, the Department should ensure that its decision-makers have regard to the various material on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform, including the FOI Code of Practice, and to produce more informative schedules as a matter of good practice.

Finally, I note that the Department failed to issue both its original decision and its internal review decision on the applicant’s request within the timeframes set down in the FOI Act. I wish to take this opportunity to urge the Department to take immediate steps to ensure that its FOI processing procedures comply with both the statutory requirements of the Act and with the CPU’s Code of Practice, which is available at www.foi.gov.ie.           

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access in part under section 37(1) of the FOI Act to the records sought by the applicant, and to whether it was justified under section 15(1)(a) in refusing the aspect of the applicant’s request relating to additional records that he considered ought to exist.     

Analysis and Findings

Section 37(1)

As outlined above, the Department refused access in part under section 37(1) of the FOI Act to records that fell within category 7 of the records sought by the applicant (records relating to Forestry application CN07-FL0019). The Department redacted names, email addresses and postal addresses of individuals from the following specific records in in category 7:

  • two notices of the Department’s decision on the application to interested third parties (both dated 19 March 2020)
  • two submissions on the application from interested third parties (dated 2 and 3 March 2020)
  • an email dated 2 March 2020 to a third party who made submissions on the application.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

The Department did not make detailed submissions in relation to section 37(1), but simply stated that it had redacted personal information under that provision of the FOI Act. I have examined the redacted material that falls within category 7 of the applicant’s request, and I am satisfied that it is the personal information of individuals other than the applicant. However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under FOI must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), which are not applicable in this case, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3), which provides that in performing any functions under the FOI Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In this case, the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the relevant individuals. However, I would accept that there is a public interest in ensuring transparency in the manner in which the Department processes applications for forestry licences. At the same time, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

While I accept that the release of the records in respect of which the Department cited section 37(1) would serve to somewhat enhance transparency around the manner in which it processes applications for forestry licences, it seems to me that the degree of enhancement would be quite limited. On the other hand, while the information redacted from the records might not be said to be particularly inherently sensitive, the fact remains that it is personal information relating to the relevant individuals, and I must regard its release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply, and that the Department was justified in refusing access, under section 37(1) of the FOI Act, to the information I have identified as personal.

Section 15(1)(a)

The final category of records sought by the applicant, to which the Department refused access under section 15(1)(a) of the FOI Act, was any examples held by the Forestry Division of a “Forest Road Construction Method Statement”, as referenced in application CN81642.

Section 15(1)(a) of the FOI Act 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 this Office in such cases 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 Department provided detailed submissions in relation to section 15(1)(a), outlining its position that additional records could not be found after all reasonable steps to ascertain their whereabouts had been taken. It provided details of the searches it had carried out, as well as detailed information regarding the nature of the records created and the filing systems that it used, including an explanation of the manner in which its IT system iForis (Integrated Forestry Information System) was utilised. I do not consider it necessary to reproduce all of this information here, although it is of note that, in relation to its record retention practices, the Department stated that none of the relevant files or records would have been destroyed during the time from when the applications were made to date, and stated that a two-year retention policy applied to all emails that had not been specifically saved by Department staff. The Department noted that, as forestry is a long-term undertaking, all hard copy files were retained for periods up to and including the period of payment of premiums, which could be for 20 years in some cases.

I did provide full details of the Department’s account of its searches, and of its storage and retention practices, to the applicant, and invited him to make any further submissions that he wished. The applicant subsequently made extensive submissions, which did not specifically address the final category of records specified in his FOI request, but rather related to what he saw as shortcomings in the Department’s searches in response to his request generally. I consider this matter further below.

In relation specifically to the final category of records sought by the applicant, in respect of which the Department cited section 15(1)(a) of the FOI Act, on balance I am satisfied by the Department’s explanations. On the basis of the information available to me, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the records sought. On balance, I find that the account provided by the Department of it searches, and its storage and retention practices, constitutes a clear and sufficiently detailed explanation of its systems and processes that accounts for the fact that no additional records falling within the final category of records sought by the applicant could be found. It was therefore entitled to rely on section 15(1)(a) to refuse, on an administrative basis, the final category of the applicant’s FOI request.

However, the matter does not end there, because – as outlined above – in addition to the final category of records of the FOI request in respect of which the Department cited section 15(1)(a), the applicant did not accept that he had been provided with all the records that should exist in response to his FOI request generally. In his application to this Office for a review of the Department’s decision, and in his subsequent submissions, he provided a number of specific examples of additional records that he felt ought to exist. In particular, he expressed his dissatisfaction with the following aspects of the Department’s decision as a whole:

  1. TFL00456820 (category 1 of the records sought in the original FOI request): The applicant argued that additional records should exist from the Department’s Ecology Tracking System (ETS) in respect of this application. Furthermore, he argued that the referral request to Ecology should exist, along with additional emails from staff in the Ecology section. The applicant argued that no records relating to this application had been provided from the Department’s Ecology Section or the ETS and that additional records from these systems should exist. The applicant also stated that an "Archaeology Worklist" associated with this application existed, and additional records from this worklist should exist, given the length of time that (according to the applicant) the file was with the Archaeology section.
  2. TFL00289119 (category 2 of the records sought in the original FOI request): The applicant stated that this application was referred for an Ecology report. He argued that additional records ought to exist in relation to this referral and gave specific examples of named Department officials who referenced the referral. He also noted that no records had been provided from the Ecology tracking system in relation to this referral, or the date on which the referral took place. Moreover, the applicant referred to Department correspondence that mentioned both an Appropriate Assessment Report (AAR) and an Appropriate Assessment Determination (AAD), and stated that both AAR and AAD should have been provided to him. The applicant also referenced several Department emails, requests and application notes that he stated should exist. He also referenced a request from a named Department staff member for a hold to be placed on a Natural Impact Statement (NIS) associated with this application, and indicated that he should have received a copy of this request. Furthermore, the applicant indicated that he should have received a copy of the standard Further Information Request (FIR) that would normally be sent to a client.
  3. NWS1104 (category 3 of the records sought in the original FOI request): The applicant argued that the Tree Felling Licence application associated with this file was again referred for an Ecology report, but that no records had been provided to him indicating who had made the referral. Again he argued that additional records from the ETS ought to also exist. He also argued that he should have received a copy of the standard FIR in respect of this application that would normally be sent to a client. The applicant also argued that the Department's position – that the file was never referred to the Ecology section, as stated in a letter it sent to the applicant dated 17 November 2022 – was contradicted elsewhere in the records.
  4. NWS1110 (category 4 of the records sought in the original FOI request): The applicant stated that records released by the Department in response to his request indicated that no referral for an Ecology report had been made in respect of this application. However, he argued that this was contradicted elsewhere in the information provided by the Department, and that therefore additional records ought to exist in relation to a referral for an Ecology report that had in fact been made in the context of this application. He also stated that he should have been provided with records from iFORIS in relation to the ‘CN’ file number associated with this application. Furthermore, the applicant referred to internal Department email correspondence that mentioned “updated [my emphasis] approval letters” and stated that he should have received the original version of any such letters.
  5. NWS1094 (category 6 of the records sought in the original FOI request): The applicant indicated that he had had sight of a Department email that stated that all the information in relation to this application was “…scanned into iFORIS” but that he had not received any iFORIS records in relation to the application.
  6. CN07-FL0019 (category 7 of the records sought in the original FOI request): The applicant indicated that he expected that a number of specific additional records should exist in relation to this application, including: a Forestry Division Felling Licence Form; a Tree Location Map at 1:5000 scale; a Harvest Plan Map; a site-specific Harvest Plan; a Reforestation Plan Map; IFORIS notes; and a District Inspector (DI)’s Certification Report.
  7. In respect of the “specific IT issue” (category 8 of the records sought in the original FOI request), the applicant argued that additional records should exist including record detailing a stop placed on certain contracts, and numerous e-mail records from various Forestry Division staff in relation to the IT issue affecting payments for contracts.

I put the applicant’s arguments above to the Department and requested that it address same. In response, the Department advised as follows.

  1. In relation to the applicant’s contention that additional category 1 records should exist, the Department stated that ETS system is a database that records only the fact files have been assigned to the Ecology section for assessment and the status of that process. The Department stated that the ETS does not contain any ecology information or notes. In relation to the applicant’s claim regarding that additional records associated with the "Archaeology Worklist" should exist, the Department reiterated its position that all available records in relation to the application been provided. It stated that worklists such as the one referenced by the applicant were used by its Ecology and Archaeology sections to track the files allocated to each section, but did not contain any additional information on the files beyond the fact that the file is with the relevant section and the stage of the relevant application.
  2. Regarding the applicant’s assertion that additional category 2 and 3 records should exist, the Department stated that it had provided a screenshot of the relevant entry on the ETS (again the Department’s position is that the ETS does not contain additional information or notes beyond that visible in the screenshot). In respect of the AAR and AAD, the Department stated that these reports had been sent to the applicant as part of its response to his FOI request (I have reviewed the records relating to application TFL00289119 that were released by the Department and accept that this is the case). In relation to the applicant’s argument that additional records relating to various requests and referrals should exist, the Department stated that its referral procedure was not necessarily a formalised and documented process. It stated that a referral could be as simple as a telephone call between inspectors and ecologists. Therefore, it stated, the additional referral records that the applicant expected to exist had not been created as part of the referral process. In relation to additional emails and internal Departmental correspondence sought by the applicant, the Department stated that not all emails between staff were as a matter of course retained or saved to the filing system or on iForis. It stated that all available email records had been provided to the applicant. In relation to the FIR with which the applicant argued he had not been provided, the Department provided a copy of an email from that it said indicated that the FIR had been issued to the applicant on 12 November 2020. I have viewed this email and accept the Department’s contention in relation to the FIR. In relation to the applicant’s claim that the Department’s position – that file NWS1104 was never referred to the Ecology section – was contradicted elsewhere in the records, the Department reiterated its position that was no record on the Ecology Tracking System or on its iForis system of an ecology report for this file.
  3. Regarding the applicant’s arguments that additional category 4 records should exist, the Department noted that this file corresponded to forestry application CN83833 on its iForis system, and was approved in July 2019. It stated that all records relevant to this category of the applicant’s request had been released and that there was no record of any Ecology report being completed for this file. It stated that it had addressed this issue in a follow-up letter that had issued to the applicant on 17 February 2022, a copy of which it provided to this Office. I have viewed this letter and I accept that it addresses the matter of the Ecology report that the applicant stated should exist. The Department further stated that no additional approval letters existed other than that which issued to the applicant on 11 July 2019. In relation to the applicant’s claim that the Department’s reference to “updated approval letters” implied the existence of prior versions of these letters, the Department reiterated its position that available records pertaining to the file had been provided to him.
  4. In respect of the additional category 6 records that the application contended should exist, the Department reiterated its position that all records in relation to this file had been released to the applicant. It stated that it required all applications for the relevant forestry scheme to be made in hard copy, as an online application facility was not available, but that most of the documents and correspondence associated with each application were also scanned into iForis. The Department stated that staff working on a file would routinely record the fact that they had scanned material into iForis for the information of anyone else who is working on the same file; however, it stated that it did not follow from this that records additional to those already provided to the applicant existed on iForis.
  5. Regarding the applicant’s contention that additional category 7 records ought to exist, the Department noted that this part of the FOI request related to a felling licence application made by a State-owned forestry business. It stated that the records released to the applicant in relation to this aspect of his request included the Forestry Division Felling Licence Form and map (at 1:10,000 scale). It stated that it did not hold licence applications relating to the State-owned forestry business on iForis in the same manner that it did with private licence applications. The Department stated that no relevant harvest plan, reforestation plan or DI’s report, as sought by the applicant, existed.
  6. In respect of the applicant’s claim that additional category 8 records should exist, the Department reiterated its position that all records relevant to this aspect of the FOI request had been released. It stated that all issues were recorded on its Jira IT system, which required registration and passwords to access and was only used by administrative staff to communicate on IT related issues with IT staff. The Department noted that IT issues would not have been dealt with by the forestry staff named by the applicant. The Department stated that all records in relation to the IT issue that appeared on the Jira system had been released to the applicant.

I considered it appropriate, in order to afford the applicant the opportunity to fully understand the Department’s position and to make any additional submissions that he wished, to put to him the Department’s above account of its searches, and its storage and retention policies for the purposes of section 15(1)(a), in the context of its response to the applicant’s FOI request generally. In response, the applicant made a number of additional arguments, which I have summarised as follows.

a. The applicant argued that the Department did not mention in its account of the searches that it had carried out for relevant records that that it had searched the Ecology Tracking System or the Archaeology Worklist, both of which he said were relevant to his request. 

b. The applicant also provided a copy of an ETS report (in relation to a forestry licence application not associated with this FOI request) which he stated had been uploaded to the public Forestry Licence Viewer (FLV) by the Department’s Forestry Service, but had since been taken down since. The applicant stated that this report contained information that the Forestry Service had said did not exist, and was precisely the type of information that he sought. He stated that reports like this one should be available for all the applications covered by this FOI request, and that the absence of same required an explanation.

c. The applicant argued that the Department had provided screenshots of the iFORIS Notes pages, but had not provided any details or screenshots of the ‘Contacts’ page, which he stated would list all associated or added documents.

d. The applicant argued that that, in response to a previous FOI request he had made, the Department had been unable to provide details of any processes regarding the Native Woodland Conservation Scheme (NWS Conservation), and that this was contradicted by the fact that the Department had been able to provide this Office with details of its consultation process for the conservation scheme.

e. In addition, the applicant argued that, as his understanding was that NWS Conservation applications were assigned a CN number on iFORIS, for each such application an iFORIS report, notes, and contacts should have been provided.

f. The applicant argued stated that his own research had indicated that the iFORIS system could be interrogated by means of a reporting system, or by constructing ad hoc reports for specific requirements. He stated that it followed that basic reports should be available.

g. The applicant stated that all hard copy documents received by the Department’s forestry service were ‘date stamped’ on receipt, and those stamps should be on all hard-copy documents provided to him.

h. The applicant stated that one of his main concerns was how and when the “DI’s reviews and comments” were made, arguing that same must have been authorised and made at an appropriate time.

i. In relation to the IT issue that formed the final category of records in his FOI request, the applicant argued that the details of this issue must have been recorded somewhere, and someone from the Department’s IT section must have fixed it. He also argued that, if it did not just affect his applications, there should be a huge amount of communications related to the issue. In addition, the applicant alleged that payments due to him had had a ‘stop order’ placed on them, and posed a number of questions in relation to who had made such an order, why it had been made and when, and if it was a coincidence that the stop order coincided with the IT issue. In short, the applicant indicated that he simply did not believe that any such IT issue ever arose.

j. The applicant again reiterated his concerns regarding the lack of a schedule of records provided by the Department, arguing that in the absence of same the Department could not be certain of what had sent him in response to his FOI request.

k. In relation to the two-year retention policy for emails as referenced by the Department, the applicant indicated that he simply did not believe such a policy existed. He also queried why emails would be deleted after two years but other documents kept for 20 years.

l. The applicant stated that the account of the searches carried out by the Department did not mention records stored on mobile phones. He stated that, as he had received text messages from Inspectors relating to the Forestry Licence applications at issue, it is followed that the Department used phones for work communications and these devices should have been searched for relevant records.

m. The applicant argued that if, as the Department argued, the NWS Conservation Scheme was managed by an excel spreadsheet tracking referrals to DIs and ecologists, the excel spreadsheet should have been provided in response to his request.

I have carefully considered the applicant’s additional arguments above and, first of all, would note that, in my view, the issues he has raised in points (a) to (j) above have been addressed satisfactorily by way of the Department’s previous responses on the matter. In particular, I would note as follows in relation to points (a) to (j).

  • In relation to the applicant’s claims of insufficient searches of, and lack of adequate records derived from, the various file storage and tracking systems in use in the Department, I consider that the Department has clearly outlined at points (i) to (v) above the details of the searches it carried out of its various systems, and has consistently argued that all records located on foot of such searches have been provided to the applicant. In the absence of any evidence to suggest that this is not the case, I am minded on balance to accept the Department’s arguments in this regard.
  • In respect of the applicant’s argument that it should be possible to generate basic reports from iFORIS (point (f) above), I would reiterate that the FOI Act does not require FOI bodies to create new records in response to a request, or entitle a requester to same.  In addition, I note again that the Department has clearly outlined the details of its searches as well as its position that all records located following such searches have been provided. Again, in the absence of any evidence to suggest this is not the case, on balance I accept the Department’s arguments.
  • Regarding the applicant’s arguments relating to the lack of date stamps on hard copy records provided to him (point (g) above), I consider that this is not matter that falls within the remit of this Office to address. Any supposed lack of date stamps on records goes to the matter of the Department’s procedures generally, which this Office has no role in interrogating.
  • In relation to the concerns expressed by the applicant at point (h) above, I consider that the applicant’s argument here – that he is entitled to details regarding the manner in which DI’s reviews and comments were made – is not a request for information in records, but rather a specific question in relation to the Department’s processes. Again, my view is that this is not information to which he is entitled in response to an FOI request.
  • In relation to the applicant’s arguments regarding the additional records that ought to exist in relation to the IT issue (at point (i) above), I consider that the Department has provided a sufficient explanation of the searches it carried out for records relating to this category of the applicant’s request (at point (vi) above). In relation to the applicant’s specific questions in relation to the ‘stop order’ he said was placed on payments due to him, again I must reiterate that the FOI Act does not entitle a requester to have specific questions answered, but is limited to a right of access to information in records.
  • With regard to the applicant’s concerns as expressed at point (i) above, I must reiterate that the FOI Act does not require the production of a schedule of records and this Office has no role in requiring an FOI body to produce same. My comments above in relation to best practice refer.

On the other hand, I formed the view that the applicant’s arguments at points (k) to (m) above raised issues that required further explanation. I therefore put them to the Department, which responded as follows.

  • In relation to the applicant’s arguments at point (k), that it was not feasible for the Department to have a two-year retention policy for emails, I requested sight of the relevant retention policy from the Department. It subsequently provided me with a copy of same and, on that basis, I am satisfied that the Department does indeed have a two-year retention policy for emails as outlined in its submissions. I note that the applicant considers it implausible for such a policy to exist, and that he repeatedly returned to this point in the course of his correspondence with this Office during this review. I must reiterate that I have had sight of the policy and can confirm that it exists as asserted by the Department.
  •  In relation to the applicant’s argument at point (l) regarding records potentially stored on mobile devices and whether searches of such records were carried out, the Department clarified that that all information stored on its devices fell within the scope of FOI requests. It stated that, in carrying out searches, staff would have been requested to provide all records including any on Department mobile devices, such as texts and WhatsApp messages. It said no such records were discovered in the search. The Department indicated that, while the applicant may have received texts and WhatsApp messages from Department staff during the course of his engagement with the Department, these may have been deleted from the mobile devices concerned at the time of the request, and that no such records now existed.
  • In relation to the applicant’s argument at point (m) regarding the excel spreadsheet used to manage the NWS Conservation Scheme, the Department stated that the only application specified in the applicant's FOI request was CN81642. The Department also provided this Office with a copy of the spreadsheet, and can confirm that this is the case. The Department also advised, firstly, that the spreadsheet was no longer in use, and secondly that the provided copy was the only version of the spreadsheet that remained in existence. I note that CN81642 is referenced in a very specific manner in the applicant’s FOI request (which sought “Any examples held by the Forestry Division of a “Forest Road Construction Method Statement”, as referenced in application CN81642”). This is not the context in which CN81642 appears in the spreadsheet. Therefore, I do not consider that the spreadsheet falls to be released in response to the FOI request.

In relation to the final point above, as the response from the Department contained information of which the applicant had not previously been made aware, I put same to him to afford him the opportunity to make any final submissions that he wished on the specific issue of the excel spreadsheet. In response, the applicant made further extensive submissions on the matter of his FOI request generally, and in particular the shortcomings he perceived in the Department’s response. I consider that the issues raised in these final submissions in relation to the applicant’s request generally have either already been addressed above, or are not matters that fall within the scope of this review or the remit of this Office. In the section of the applicant’s final submissions in which he did address the excel spreadsheet specifically, he raised a number of further questions in relation to the spreadsheet. However, I do not consider that it is within the scope of this review to address these questions further. As outlined above, the FOI Act enables access by requesters to information contained in records that are held by an FOI body. Generally speaking, it does not entitle a requester to have specific questions answered.

Along with his final submissions, the applicant also provided a Department document from 9 February 2022 entitled “Project Woodland Working Group 4 – System Analysis Report”. He pointed to a number of statements in this report that he said supported his view that additional records ought to exist which should have been provided. I have examined this report and in particular the sections flagged by the applicant, and I do not share his conclusions. While the report makes a number of general statements regarding the file management systems in place by the Department, and which the applicant has pointed to in support of his arguments, I do not consider that it necessarily follows from these statements that the Department did not take reasonable steps to locate additional records.

I would comment in general as follows in relation to the various queries and assertions made by the applicant regarding the additional records he claims should exist, and the relevant responses from the Department. It would seem to me that the applicant’s understanding of the systems and processes that he believes should be in place in the Department, and which he believes should have generated additional records relevant to his request, may not necessarily reflect the operational reality in the Department’s Forestry Service. For example, the applicant feels that where a forestry licence application is referred for input from the Department’s Ecology section, some record should exist that documents this referral. From the information provided by the Department, it would appear that this is not necessarily the case and that an element of operational informality exists, whereby such referrals may take place by way of a phone call and not be subsequently documented. Similarly, it would appear that the applicant has an expectation regarding the amount of information that is recorded on the ETS (being of the view that additional records should exist in the form of documentation recorded on the ETS) that does not necessarily align with the operational reality.

In any case, the applicant clearly believes additional records should exist regarding the named forestry licence applications. I have carefully considered his arguments, and those of the Department, and find as follows. In relation to the applicant’s additional queries at points (k) to (m) above, and the Department’s responses, I am satisfied that, on balance, the Department has provided a sufficiently detailed and cogent explanation of the relevant searches carried out, and of its storage and retention practices and policies, to account for the lack of additional records that the applicant asserts should exist. Furthermore, I consider that, in relation to the applicant’s FOI request generally, the Department has provided a reasonable and logical explanation for the lack of additional records, and has provided a clear and adequately detailed explanation of the nature of its systems and processes that accounts for the non-existence of additional records. Clearly, the applicant does not consider such explanations adequate. However, it is important to note that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or (as in this case) existence of records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. Given the requirements of this test, I consider that the Department has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish the non-existence of the records sought were reasonable.
Accordingly, I find that, in respect of both the final category of records of the applicant’s FOI request, and the additional records relevant to the other categories of the request that he argued should exist, the Department was entitled to rely on section 15(1)(a). I find that it was reasonable for the Department to hold on the basis of its searches that the additional records sought do not exist, and to refuse these aspects of the request on that basis.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that it was justified in refusing access to the material that it redacted from the records under section 37(1) of the FOI Act. I also find that it was entitled to rely on section 15(1)(a) of the FOI Act to refuse access to the final category of records in the applicant’s FOI request, and the additional records that he claimed should exist.

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.

 

Neill Dougan
Investigator