Case number: OIC-101899-T6Z2B4
20 May 2021
On 24 June 2020, the applicant submitted a five-part request to the Department. Specifically, he sought access to:
On 20 August 2020, the Department said that it had decided to grant the request. It released 16 records to the applicant, comprising 13 letters detailing the reasons relevant for the exclusion of the listed townlands from the ANC Scheme, a record containing information relevant to the inclusion of one townland in the ANC Scheme, the report of the Value for Money Review of the Disadvantaged Areas Scheme (DAS), the precursor to the ANC Scheme, and a record containing information relating to stocking densities, the percentage of arable areas, and the percentage of Natura 2000 land occurring. It also provided a written response in respect of parts 3 and 5 of the applicant’s request.
On 16 September 2020, the applicant sought an internal review of the Department’s decision on part 3 of his request, suggesting that it had not been addressed. On 8 October 2020, the Department issued its internal review decision wherein it re-stated the written response it had provided in respect of part 3 and also referred to and gave an explanation of Chapter 5 of the Value for Money Review of the DAS. It said that the information provided was the relevant information available in relation to the request. On 16 December 2020, the applicant sought a review by this Office of the Department’s decision on part 3 of his request.
During the course of the review, Ms Swanwick of this Office provided the applicant with details of the Department’s explanation as to why it considers that no further relevant records containing the information sought at part 3 of his request exist. She also informed him of her view that the Department was justified in refusing access to the information sought under section 15(1)(a). She invited the applicant to make a further submission on the matter.
As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
This review is concerned solely with whether the Department was justified in refusing access to further information relevant to part 3 of the applicant’s request concerning FFI data in the context of the ANC Scheme on the ground that no further records containing the information sought exist.
While the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Therefore, any information sought by the applicant has been interpreted as a request for records containing such information.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Department argued, in essence, that no further relevant records containing the information sought exist. It provided this Office with an explanation of the ANC Scheme and the changes that have been implemented since 2019. As this Office has already provided the applicant with the details of the Department’s submission, I do not propose to repeat them in full here. However, I can confirm that I have had regard to them for the purposes of this decision.
The Department outlined that the ANC Scheme has been in existence in various forms since the 1970s and has previously been called the DAS and the Less Favoured Areas Scheme. It noted that prior to 2019, eligible lands were identified using a range of socio economic indicators (e.g. FFI, population density, percentage of working population engaged in agriculture, stocking density etc.) but that since 2019, they have been identified using biophysical criteria (e.g. low temperature, excess soil moisture, poor chemical properties, steep slope).
The Department explained that in advance of the 2019 ANC Scheme, a review of the eligibility of lands in accordance with the biophysical criteria was undertaken. It stated that there were also two additional steps – first, lands which met the biophysical criteria were subject to a fine tuning exercise, whereby if they were deemed to have overcome the biophysical constraint by reference to the type of land use and the concentration of livestock, they were removed from eligibility, and second, lands which were not identified as being biophysically constrained were reviewed to see if they could be eligible as an area of specific constraint under one of three headings, including “Structural Constraints – Grassland and Field Size”. It stated that under this heading, townlands were identified where more than 50% of the townland was in permanent grassland and there was an average field size of less than 4 hectares. It noted that in order to fully focus support on specific areas within this category facing the most acute need for support, a further refinement was required and, as such, a cohort of farmers was identified where the average FFI was less than 65% of the FFI of farmers who were not classified as disadvantaged/facing constraints under the iteration of the scheme that was in place. I note that this information was also referred to in the Minister for Agriculture, Food, and the Marine’s announcement of the 2019 ANC Scheme.
In providing further detail regarding FFI and the ANC Scheme, the Department referred to the Value for Money Review of the DAS. It noted that it had been determined that there was a clear gap in FFI levels between farmers farming lands classified as disadvantaged/constrained and receiving payment under the DAS and farmers farming lands not classified as disadvantaged/constrained and not receiving payment under the DAS. It outlined that it was on this basis that the cohort of farmers most in need of support under the ANC Scheme was identified and why, under the “Structural Constraints – Grassland and Field Size” heading, only areas of land that had met the grassland and field size criteria and which had been designated as eligible under the DAS, qualified under the 2019 ANC Scheme.
The Department explained that FFI is calculated by deducting all farm costs (direct and overhead) from the value of farm gross output (Value for Money Review of the DAS, page 20). It further explained that it has no role in the determination of FFI, which is carried out by Teagasc as part of the National Farm Survey, and that FFI data is not presented at individual farmer/townland level but by using averages nationally across a variety of farming systems/farm sizes. Furthermore, the Department provided this Office with an excerpt of its database, outlining that it does not hold specific FFI data in relation to the townlands listed by the applicant; rather, it indicates whether a townland was previously eligible/not eligible under the DAS.
In respect of the townlands listed by the applicant, the Department explained that the letters released reference the FFI consideration, where applicable. It also provided a link to a “Frequently Asked Questions” document mentioned in those letters, which provided details regarding the changes to the 2019 ANC Scheme, including the use of FFI data.
The general thrust of the Department’s position is that no further relevant records containing the information sought exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice.
Having considered the Department’s description of the manner in which FFI data is used in the context of the ANC Scheme, I am satisfied that the Department was justified in refusing access to further records containing the information sought at part 3 of the applicant’s request on the ground that no further records containing the information exist.
Having carried out a review under section 22(2), I hereby affirm the Department’s decision to refuse the applicant’s request for additional information relevant to part 3 of his request concerning FFI data in the context of the ANC Scheme under section 15(1)(a) of the FOI Act on the ground that no further relevant records containing the information sought exist.
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.