Case number: OIC-126294-S6Q6G6

Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant as a prison officer and former prison officer from 1988-1989 on the ground that no further relevant records exist or can be found

 

4 November 2022

 

Background

In a request dated 24 May 2022, the applicant sought access to all records held in the Department relating to him as a prison officer and former prison officer from 1988-1989. He said he understood there was communication with the Department of Justice on the subject of his dismissal, review and reinstating as a prison officer.

In a decision dated 20 June 2022, the Department released six records to the applicant. It said the same records had previously been released to him in response to an FOI request he made to the Department in November 2015 and were also released to him on foot of as a subject access request he made in April 2021.

On 21 June 2022, the applicant submitted a request for an internal review of the Department’s decision. He said that he did not receive a “document that relates [originate] to the first quarter of 1989 to/from Department of Finance also to/from Department of Justice or any other Department to include all TX RX and notes”. He said he found it odd that he did not receive a copy of two pages from the file in 1989 that he already possessed. He did not specify how he obtained those two pages.

On 11 July 2022, the Department varied its original decision. It granted access to one additional record with certain third party personal information redacted under section 37(1) of the Act. The Department also affirmed its original decision in relation to the first six records, noting that personal information was redacted in records four and six under section 37(1).

On 12 July 2022, the applicant applied to this Office for a review of the Department’s decision on the ground that it did not provide him with two pieces of correspondence (from the first quarter of 1989) that is with the Department of Finance which was sent to the Department of Justice.

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 further comments and/or submissions 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 submissions made by the Department in support of its decision and to the applicant’s comments in his application for review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

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.

Analysis and Findings

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.

As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

The Department provided this Office with details of the previous FOI request and data access request it received from the applicant. It said that it had released the records previously in reply to the applicant’s November 2015 request. On the matter of the two pages the applicant has but did not receive on foot of his latest request, the Department stated that it has released all relevant records to the applicant and that it “has received no clarity from the applicant during its many interactions with him on the nature of the ‘two pages’, and thus has provided copies of all available documents to the applicant on request.”

The Department also pointed out that it was only established in 2011 and therefore no correspondence could have been exchanged between the Department and the Department of Justice and Department of Finance. Although after its creation, the Department took on partial functions and records initially stored in the Department of Finance, it said it is not “possible to say if the ‘two pages’ referred to exist and cannot be found, or if they never existed within the Department.

The Department explained that it carried out physical searches and undertook consultations with relevant staff. In regards to electronic searches it said that electronic personnel files were not in existence or were not common at the time set in the request. It said electronic files currently held relating to the applicant are scanned copies of the paper files referenced above and throughout its submission. Electronic copies of files are held securely on a document management system and information pertaining to FOIs are managed by the Department’s FOI Unit. The Department also said that there was no evidence of any records related to the applicant’s request being destroyed. The Department stated that after all searches were carried out, no further records were found.

As outlined above, the entirety of the search details submitted by the Department were provided to the applicant by the Investigating Officer. In response the applicant repeated that he possesses records which the Department did not released and asked why. The Investigating Officer requested the applicant to provide a copy of the records in order to review them and follow up with the Department. The applicant did not reply. Accordingly, I cannot say whether the records in question comprise evidence to suggest that the Department ought to have carried out further specific searches for relevant records.

While the FOI Act demands that FOI bodies meet very high standards in dealing with requests, the corollary is that the legislation assumes reasonable behaviour on the part of requesters. In consulting with an applicant, we consider that it is not unreasonable for us to expect to receive the applicant's cooperation in securing a thorough and efficient review. Where an applicant has information which would assist us in pursuing the matter with the FOI body and would assist the FOI body in ascertaining the whereabouts of records, we expect the applicant to provide such information to us at an early stage. The applicant did not do so in this case.

It is important to note that 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. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

Having regard to the Department’s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records 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 additional relevant records on the ground that no further relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional relevant records relating to the applicant’s time as a Prison Officer and former Prison Officer in the years 1988-1989.

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.
 

 

Stephen Rafferty
Senior Investigator