Case number: OIC-122260-X8W7D9
8 August 2022
In a request dated 1 February 2022 the applicant sought access to all correspondence (including SMS and messages on messaging apps and emails including those sent and received on non-governmental email accounts) between the Minister and his special adviser during the period of 16 June 2020 - 18 June 2020; and from 20 December 2021 to date of his request.
On 3 February 2021 the Department asked the applicant to narrow the scope of his request as it was likely to be refused in its current format, under section 15(1)(c) of the Act, on the basis that granting the request would cause a substantial and unreasonable interference with its work. The Department suggested for instance that the applicant specify the topic of communications which were of interest to him.
On 15 February 2021 the applicant narrowed his request to the following dates:
On 9 March 2022 the Department asked the applicant to clarify his request further, referring to the requirement under section 12(1)(b) of the Act that a request should contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. It said the request was likely to be refused under section 12(1)(b) otherwise. On the same date, the applicant declined to provide further details.
In a decision dated 15 March 2022 the Department refused access to the request under section 15(1)(b) on the ground that the request did not comply with section 12(1)(b). On 16 March 2022, the applicant sought an internal review of that decision. He contended that the names of the sender, the recipient and the time frame constitute sufficient particulars. In its internal review decision dated 14 April 2022, the Department said it had identified five records coming within the scope of the applicant’s request. It granted access in full to three records and partial access to the two remaining records, with redactions made pursuant to sections 33(1)(d) and 37(1) of the Act.
On 19 April 2022 the applicant sought a review by this Office of the Department’s decision on the ground that he believed further relevant records exist. He said he was sceptical that no email correspondence was exchanged between the two parties during the relevant time frame. He noted that the records released consisted of screenshots of the special adviser’s text messages to and from the Minister and he argued that there is a corresponding record on the Minister’s mobile phone which was not released. He also expressed broader concerns about the alleged failure of the Department to search the Minister’s mobile phone in response to FOI requests.
During the course of the review, the Investigating Officer provided the applicant with details of the Department’s submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make a further submission on the matter, which he duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence referred to above and to the submissions made by both parties in this case. I have decided to conclude this review by way of a formal, binding decision.
The applicant considers that further relevant records should exist. The Department’s position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant’s request.
As the applicant did not seek a review of the Department’s decision to redact certain information from two of the released records, I will not consider those redactions in this review.
Before I address the substantive issues arising, I would like to comment, for the benefit of the Department, on the matter of its initial refusal of the request under section 15(1)(b). In its submissions to this Office, the Department sought to defend the position it had originally taken to refuse the request under section 15(1)(b). In essence, it argued that the individuals named in the request are necessarily engaged across a range of areas on a daily basis, beyond the remit of a request pertaining to the policy areas of the Department alone, and that it was entirely reasonable to refuse the request following the applicant’s refusal to identify the topical scope of the records sought.
This Office actively encourages engagements between public bodies and requesters with a view to ensuring efficient and effective request processing. Accordingly, I see no issue with the Department enquiring as to whether the applicant was interested in accessing records relating to a specific topic or policy area. However, while it forms no part of this decision, it seems to me that the Department did not have adequate grounds for refusing the request under section 15(1)(b) in this case. In my view, the applicant did, indeed, provide sufficient particular to allow the Department to identify the records sought by the taking of reasonable steps. He described the types of communications sought, the two individuals concerned, and the specific dates upon which those communications may have been exchanged. Moreover, having regard to the fact that the Department went on to identify and locate the records sought by taking reasonable steps, I fail to see how it can reasonably argue that the request did not comply with the requirements of section 12(1)(b). I accept that a situation could arise where a request for records of communications for a lengthy period of time could give the Department cause for concern in respect of the potential volume of records that might have to be examined. However, this was not such a case and in any event, such concerns would be more properly addressed by considering the provisions of section 15(1)(c).
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and 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 said the records identified in a full and comprehensive search of all relevant devices of both parties were multifarious in substance but singular in their modality – text messages on official Departmental devices. It said a collated version of the complete text message exchanges – the entirety of the records in scope in this case – that were found through a comprehensive search of all relevant devices were provided to the requester, in fulfilment of the Department’s obligations under the Act. It said the messages provide a full and complete record of the exchanges between the parties for the time period requested and that they were the only records exchanged between the parties on the dates sought.
This fact was verified through engagement by the internal reviewer with both parties along with their devices. As the applicant has acknowledged, 5 records were suitably provided to him on 15 April 2022, with essential minimal redactions applied where required, following the internal review of his FOI request. No records that were found within the date range specified were refused or deemed wholly exempt from release on appeal.
Indicative of the Department’s consistent effort to respond transparently in the public interest on FOI requests, the internal reviewer determined that, notwithstanding the topical breadth of the records and the necessity for processing in an extremely busy office, it was in the public interest to release all 5 of these records to the greatest extent possible on review.
The Department added that the fact that records exist in one modality only in this instance is not unusual or unexpected practice for those familiar with contemporary communication practices in government. It said Government Ministers maintain both a fully staffed Departmental private office and a constituency office on their behalf to manage the extensive volumes of correspondence received in their dual capacity as both Minister and public representative in their constituency. It said that as such, it is not usual practice for a Minister to regularly operate their own email accounts in their demanding day-to-day work and that most correspondence is typically received by a Minister and generated by those providing him/her with information. It added that special advisers are essential, close aides to any Minister and spend much of their time in the Minister’s presence. It said it would not expect to find extensive emails or written records exchanged between a Minister and special adviser on any topic given their routine, daily, in-person contact.
The Department said no emails were exchanged between the parties on the dates specified. It said all communication was conducted in person or by phone, with the sole records exchanged in text message format duly provided to the applicant. It said this was verified verbally on review with both parties independently with their devices present.
The Department went on to explain that its policy document on records management provides that “except in exceptional circumstances, staff should avoid using non-official IT systems, including personal email accounts or other private messaging services, to conduct Departmental business.” It said the Minister and Departmental officers also follow the policy guidelines set out by Department of Public Expenditure and Reform Circular on the “Use of Private Email and Other Private Messaging Services”. It said that in adherence to this policy, both the Minister and his special adviser transact departmental business on official devices only, which can be suitably searched for relevant records at the request of responding officers. It said these devices include Department of Foreign Affairs-issued mobile phones and computer devices. It said both parties were verbally consulted independently and in detail by the internal reviewer and requested to perform a search on all relevant devices, overseen by the reviewer. It said no records were transmitted on non-official devices or from non-official locations and that this was also established independently through verbal engagement with both parties during the internal review on their record management practices for the FOI request.
Following a request by this Office for clarification of a number of related matters, the Department said that the messaging applications used for communication between the Minister and his special adviser on their official DFA devices are SMS messaging, WhatsApp Messenger, and Outlook email only. It said searches were also carried out on WhatsApp and Outlook email and that the searches on both individuals’ devices indicated a nil return of any further records in these formats for the specific dates requested. It said the searches were overseen by the internal reviewer for the request.
As outlined above, details of the searches undertaken by the Department were provided to the applicant by this Office. In response, the applicant argued that he has made other FOI requests to the Department which resulted in the Department stating that no records had been found. He said he is in possession of a text message that falls within the scope of one of those two other FOI requests which, in the applicant’s opinion, points to a much bigger issue of failure by the Department to search the Minister’s phone for further records. He expressed concerns that he had been given a collated record of the texts exchanged and suggested that he should have received separate copies of the text messages held on each phone. He said that this raises the question as to whether the Minister’s phone had actually been searched for relevant records.
The applicant’s comments on the matter of how previous requests were handled by the Department are not a matter for examination in this review. Moreover, while the applicant has expressed concerns about whether the Minister’s phone was searched, the Department has stated categorically that it was and I have no reason to believe otherwise. On the matter of the Department’s decision to provide a collated version of the records, the Department’s position is that the records comprise the totality of the records found. While I accept that a record of a text message held on the sender’s phone is separate and distinct from the record held on the receiver’s phone, the content of the message is the same. I do not consider it appropriate or necessary in this case to require the Department to issue two versions of what is essentially the same message. The question I must consider is whether it has taken all reasonable steps to ascertain the whereabouts of all relevant records. Given the details of the Department’s submissions, and given that the applicant has presented no evidence to this Office to suggest that further relevant records should exist, I am satisfied that it has in this case.
Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further relevant records apart from those already released on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the Act, to any further records other than those already located and released on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
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.