Case number: OIC-110716-H7M6B8
10 March 2022
In a letter dated 24 January 2021, the applicant submitted a request to the Department of Justice and sought access to information and statistics under 15 headings. Following a response from the Department, by letter of 15 February 2021, the applicant refined his request to comprise:
After consultation with the Department, the applicant refined his request on 15 February 2021, and specifically sought copies of the records, which the Department held in relation to the above.
In a decision dated 22 April 2021, the Department part granted the applicant’s request, and refused access to records pertaining to parts 1, 3, 4, 5, 6 and 7 under section 15(1)(a) of the FOI Act. In relation to part 1 of the request, the Department stated that the Interim Parole Board did not hold the records requested and therefore could not provide them. Part 2 of the request was part granted through the release of information from 2016 onwards. The Department clarified it did not hold records prior to 2016. In relation to parts 3-7 of the request, the Department stated that the records did not exist categorised as per the applicant’s request.
On 28 April 2021, the applicant sought an internal review of the Department’s decision. In his application for review, the applicant stated that he did not accept that “all reasonable steps” to establish the whereabouts of the records had been taken by the Department, such as obtaining information from all areas of the Department, including the Irish Prison Service and Office of the Minister. He referenced a number of the Parole Board’s annual reports from 2003 onwards, which referred to sentence lengths, types of offences and number of prisoners.
The Department issued its internal review decision on 30 June 2021, which affirmed the original decision. It informed the applicant that the Irish Prison Service process FOI requests for the records that it holds. The Department expressed regret that the applicant was not informed at the time of the original request to submit a separate application to the Irish Prison Service. The Department also clarified that the FOI Act came into force in April 1998, and that non-personal records held before that date cannot be accessed under the provisions of the FOI Act. In relation to search efforts carried out by the Department, it set out that the appeals officer conducted searches in old document libraries and through hard copy files. The officer was satisfied that the information was not available in a single record, but would require the physical examination of records and the creation of a new record.
The review also noted that it was the practice of the Interim Parole Board when collating information for annual reports not to differentiate between life sentence prisoners and determinate sentence prisoners in its statistics until 2016.
By letter dated 15 July 2021, the applicant applied to this Office for a review of the Department’s refusal of his request. On 7 September 2021, focused submissions from the Department responded to this Office’s request for submissions. This Office provided a summary of those submissions to the applicant, and invited him to make further submissions. The applicant made further submissions, as detailed below.
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 between the applicant and the Department as outlined above, to the correspondence between this Office and both parties on the matter and to the Department’s submissions. I have decided to conclude this review by way of a formal, binding decision.
The review is concerned solely with whether the Department was justified in its refusal of the applicant’s request under section 15(1)(a) of the Act.
It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department of Justice to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
An FOI body is not required to create a record in order to grant an FOI request, except where section 17(4) is relevant. Section 17(4)(a) of the FOI Act provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, “the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course.”
Section 15(1)(a) of the FOI 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. The Commissioner's 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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
Adequacy of searches
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to be held by the FOI body.
It is the applicant’s position that the Department has deliberately withheld the information sought, as he has indicated his view that the information is available through annual reports published on the Departments website.
In its submissions to this office, the Department noted that the FOI Act came into force on 21 April 1998 in respect of requests for non-personal information. Therefore, access could not be granted to any records within the applicant’s request prior to this date. The applicant was provided with information available in relation to the second part of his request. The Department confirmed that searches were carried out on three old lotus notes databases held by Criminal Operation and Service Delivery, using the term “sentence review statistics”. These searches did not yield any results within the ambit of the applicant’s request. The secretariat of the Interim Parole Board verbally confirmed to the Appeals Officer that there were no hard copy files with the information sought. It stated that the secretariat also conducted searches on two further lotus notes libraries, in which no further records as requested were identified.
The Department also stated that in order to obtain the information requested by the applicant, it would involve a trawl of all physical files referred to the Interim Parole Board within the timeframe of the request (1999 – 2020) and a physical examination of each to establish:
1. Whether or not they are a determinate or life prisoner.
2. Whether or not the interim parole board recommended parole for a determinate prisoner.
3. Whether or not the interim parole board recommended parole for a life-sentenced prisoner.
4. The number of determinate sentence prisoners where the Minister accepted, rejected or part accepted the recommendations of the Interim Parole Board.
5. The number of determinate sentence prisoners where the Minister accepted, rejected or part accepted the recommendations of the interim parole board.
The Appeals Officer requested that a member of staff, who was attending the office, review hard copy files there to determine whether or not the files held any information relevant to the request. Following this review, it was stated that no relevant statistics were located. The Department also stated that a number of files were stored off site and because of the COVID-19 continuity measures introduced by the Department, these file were not accessible.
Finally, the Department clarified that the Parole Board secretariat began to compile statistics on the numbers of non – life sentenced prisoners whose cases were referred to the Interim Parole Board for review from 2016 onwards. The figures from 2016 onwards were provided to the applicant.
In its communications with the applicant, the Department stated that the Interim Parole Board’s annual reports available on the Department’s website. The Department informed the applicant, which contain data and statistics in relation to the cases referred to the Parole Board.
Following reference in the Department’s submission to the potential trawling of 1,438 physical files to answer the request, this Office’s Investigator sought clarity from the Department on whether it was seeking to rely on section 15(1)(c) of the FOI Act. Section 15(1)(c) provides that if in the opinion of the head, granting the request would by reason of number or nature of records involved, cause a substantial or unreasonable interference with or disruption of work to the FOI body concerned. The Department in its response, clarified that 15(1)(c) was not applied because the records requested do not exist in the format requested. It was further noted, that the information could not be extracted electronically, and that in order to grant the request it would involve a trawl of 1,438 hard copy files to collate the information.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
It is clear from the applicant’s submissions that he does not accept that the records do not exist as categorised; however, he has provided no further evidence to support his view that the Department holds the records in the manner requested.
Having considered the details of the searches undertaken and the Department’s explanation as to why no relevant records exist or could be extracted without the generation of new records, I am not satisfied that the Department has demonstrated that it has taken all reasonable steps in an effort to ascertain the whereabouts of relevant records. While I accept that the files that the Department searched did not contain the information that was requested, and that, as set out above, the FOI Act does not usually require the creation of new records in order to answer an FOI request, the Department has not searched certain files, which appear to me to be relevant to the applicant’s request.
The Department has referred to files held offsite, which were not searched due to Covid-19 restrictions. I acknowledge that many FOI bodies faced challenges when processing FOI requests as a result of the working arrangements which were necessary during the nationwide lockdown phase of the COVID-19 pandemic. In particular, I understand that practices such as remote working may have caused significant difficulties for the Department in accessing records held in hard copy only. However, given the passage of time between the initial lockdown phase and the processing of this FOI request, it is my view that it is unsatisfactory to simply state that it is not possible to access files with neither further elaboration nor efforts being made to establish whether or not the relevant files contain the information sought.
As previously pointed out to the Department by this Office, I would also note that the advice provided to FOI bodies by the Department of Public Expenditure & Reform is to ensure that FOI requests are processed to the greatest extent possible during the COVID-19 pandemic. This is set out in the Guidance Document issued by the Department entitled Continuity of FOI services during the COVID-19 pandemic (available at https://foi.gov.ie/continuity-of-foi-services/). While the initial difficulties arising from the requirement to provide for remote working were understandably significant, I would expect that the vast majority of bodies would have made arrangements in the intervening period to ensure, to the greatest extent possible, continuity of service across all of its functions, including its functions relating to the processing of FOI requests.
It also appears to me that the search term used when interrogating the Lotus Notes libraries was narrow and may not have revealed the existence of records that are relevant to the applicant’s request. In saying this, I do not wish to infer that the Department must carry out exhaustive searches, as the FOI Act does not require such action. However, I am not satisfied that the Department has shown that it has taken all reasonable steps to search electronic databases in which relevant records may be stored.
I find, therefore, that the Department was not justified in refusing access to any relevant records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
I consider that the most appropriate course of action to take at this stage is to annul the decision of the Department in its entirety, the effect of which is that the Department must consider the applicant’s 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 Department’s decision to refuse, under section 15(1)(a), the applicant’s request for records containing statistics and data relating to prisoners referred, interviewed and recommended for Parole by the Interim Parole Board, on the grounds that the records sought, do not exist or cannot be found after reasonable searches have been carried out.
I direct the Department to carry out a fresh decision making process in respect of the 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.