Case number: OIC-96531-Z7N8Q4
27 January 2021
On 30 June 2020, the applicant made an FOI request to the Department for copies of all records (including audio/visual records) of the following:
In a decision dated 24 July 2020, the Department identified 12 typed notes of meetings of the Investigations Division Steering Group as relevant to the applicant’s FOI request. It granted access to six notes in full and it refused access to parts of six notes under section 37(1) (personal information) of the FOI Act. The Department did not identify any specific records as relevant to parts 1, 3, or 4 of the applicant’s FOI request. On 14 August 2020, the applicant applied for an internal review of the Department’s decision. The applicant stated that he was seeking access to original records of the Steering Group, whether handwritten or audio visual. He did not request a review in relation to the Department’s failure to locate records relevant to parts 1, 3 or 4 of his request.
On 3 September 2020, the Department issued its internal review decision. The Department affirmed its decision in relation to the 12 typed notes identified in its original decision. It also identified a further 28 records as relevant to the applicant’s FOI request, these records include emails between members of the Steering Group, a code of practice for the conduct of investigations and a guidance note on the conduct of investigations etc. The Department granted access to 26 of these records in full and it refused access to two records, namely an update on court cases and a case review spreadsheet, under sections 30 (functions and negotiations of FOI bodies), 32 (law, enforcement and public safety) and 35 (confidential information) of the FOI Act.
On 4 September 2020, the applicant applied to this Office for a review of the Department’s decision. He contended that the Department’s internal review decision did not address the issue of original records whether handwritten and/or audio visual. He stated that records in relation to the minutes are all typed and he confirmed that he wished to obtain original records.
I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the Department as outlined above and to communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records the Department provided to this Office during the review.
This review is concerned solely with whether the Department was justified in refusing access to further records concerning the Steering Group, which oversees the Department’s Investigations Division.
As outlined above, the applicant sought a review by this Office of the Department’s decision on the ground that further original handwritten or audio visual records of the Steering Group ought to exist. As such, this Office deems section 15(1)(a) of the FOI Act to be of relevance. 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.
On acceptance of the application for review, this Office asked the Department to provide copies of the subject matter records. In reply, the Department provided redacted copies of nine handwritten notes taken by the Chair of the Steering Group, which had not previously been considered in the context of the Department’s processing of the applicant’s request. The Department refused access to parts of these notes under sections 30, 31, 32, 35 and 37 of the FOI Act. This Office’s Investigator notified the applicant that the Department had located nine handwritten notes and that it was refusing access to parts of the notes under named sections of the FOI Act. In reply, the applicant confirmed that he wished proceed to a formal written decision in relation to the issue of whether the Department was justified in refusing access to further records concerning the Steering Group.
During the course of the review of this case, this Office invited the Department to make a submission in relation to the handwritten records. The Department’s submission was provided by the Chairperson of the Steering Group, who is the author of the handwritten notes. In the submission, the Chairperson states that following a request from this Office confirming that the applicant wished to receive copies of original handwritten notes, the Secretary to the Steering Group contacted each member of the Steering Group to request that they furnish her with any handwritten notes of these meetings, if such had been retained. The Chairperson states that it was at this point that she provided handwritten notes that she had retained for her own personal use to the secretary for onward transmission. The Chairperson says she understands that no other members of the Steering Group had kept notes related to these meetings. She also states that on reviewing her papers, she found notes relating to two further meetings, which had been overlooked as part of the original search.
The role of this Office is to review decisions taken by FOI bodies on requests, not to effectively act as a first instance decision maker. The additional handwritten records identified by the Department have not been through the formal FOI process. In the circumstances, I am not in a position to find that the Department carried out all reasonable steps in an effort to ascertain the whereabouts of relevant records when processing the applicant’s request. I find, therefore, that the Department was not justified in effectively refusing access to additional records under section 15(1)(a). However, even though copies of the notes have been provided to this Office, I do not consider it appropriate in the circumstances of this case to make findings on the application of the exemptions cited by the Department under various sections of the FOI Act.
In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul the Department’s decision in its entirety, the effect of which is that the Department must consider the applicant’s FOI request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse the applicant’s request for records relating to the steering group, which provides oversight to the Investigations Division. I direct the Department to conduct a fresh decision-making process on the applicant’s FOI request.
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.