Case number: OIC-136241-V8P9F0

Whether the IPS was justified in refusing access, under sections 15(1)(a) and 15(1)(i) of the FOI Act, to records relating to the applicant’s dismissal from the IPS on the grounds that no further relevant records exist other than those previously released to him.

 

22 August 2023

 

Background

In a request dated 4 January 2023, the applicant sought access to various records relating to his dismissal from his position as a prison officer in 1988/89.  Among other things, the applicant requested details of “the person or body that had the authority” to issue the dismissal notice, as well as a copy of the notice in question. The applicant also sought copies of correspondence to or from various named staff members of the IPS, the Prison Governor and Chief Medical Officer at the relevant time and the Prison Officer Association (POA).

In a decision dated 23 January 2023, the IPS refused access to the records sought under section 15(1)(i) of the FOI Act. The IPS stated that all records, including his full personnel file, had been released to the applicant in relation to previous FOI and data access requests. On 7 February 2023, the applicant requested an internal review. In a decision dated 6 March 2023, the IPS upheld its original decision on the same basis. It maintained that the records sought in this case had been provided to the applicant previously and it included a table setting out details of his requests to date.

On 7 March 2023, the applicant applied to this Office for a review of the IPS’s decision. During the course of the review, the Investigating Officer asked the applicant to clarify what aspects of the IPS’s decision he was unhappy with. The applicant indicated that he was of the view that additional records relating to his request should exist. He also asserted that the records sought in this case had not been previously provided to him, although he provided no additional argument to support his claim. The Investigating Officer provided the IPS with the details of the applicant’s comments and invited it to comment. The IPS duly addressed the matters raised in its submissions.

During the course of this review, the Investigating Officer informed the applicant of her view that section 15(1)(a) was relevant and provided him with details of the IPS’s submissions as to why it did not hold certain additional records. He was invited to comment. The applicant has not provided any further submissions or comments in this regard.

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 IPS in support of its decision, to the correspondence between the IPS and the applicant, and to communications between this Office and both the applicant and the IPS on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant indicated to this Office that he was of the view that further records should exist. The IPS’s position is that the specific records requested by the applicant have already been released to him.

Accordingly, this review is solely concerned with whether the IPS was justified in refusing the applicant’s request under section 15(1)(i) of the FOI Act on the grounds that the information has previously been released to him, and whether it  was justified in refusing access to additional records under section 15(1)(a) on the grounds that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a)

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. 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.

During the course of this review, the applicant informed this Office of his view that additional records should exist relating to the following:

  1. A file of a review of his “alleged dismissal”,
  2. His dismissal notice,
  3. Medical records relating to PTSD and a shooting incident in a specific prison,
  4. Files held by a Mr X, former General Secretary of POA with the keywords: “review, reinstating, PTSD, and shooting”.

The Investigating officer asked the IPS to provide details of the searches it undertook to locate relevant records in this case, including records relating to points 1-4 above.

In its submissions to this Office, the IPS confirmed that it holds records relating to points 1, 2 and 3. It said that records relating to point 1 were released in part under section 37 in response to request reference FOI/213/2008. In relation to records relating to point 2, the IPS stated that one relevant record exists, dated 23 May 1989, which was considered for release in response to an earlier request (reference FOI/210/2008). It said that this record was refused on the basis that it related to meetings of the Government. In relation to records concerning point 3, the IPS stated that one document with two versions existed dated June 1989. The IPS said it released this record in a response to the applicant’s request reference FOI/213/2008.

In relation to records relating to point 4, the IPS stated that it does not hold these records. It said that POA is the representative body for Prison Officers in the Republic of Ireland. The IPS stated that POA was “a completely separate organisation” to the IPS and that it was “not a public or prescribed body” under the FOI Act.

The IPS’s position is that all of the records that it holds relating to the applicant’s request in this case have been located and considered in relation to previous access requests.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

I have had regard to the IPS’s details of the searches carried out as well as to its explanation as to why it believes that no further records exist or can be found in the IPS relating to the applicant’s request, other than those already identified.

While the applicant is of the view that additional records should exist, there is no evidence before me to suggest that this is the case. In the circumstances, and in the absence of any substantive arguments or evidence to the contrary, I am satisfied that the IPS has taken all reasonable steps to ascertain the whereabouts of additional relevant records in this case. Accordingly, I find that the IPS was justified in refusing to release additional records relating to the applicant’s request, other than those previously identified, on the basis of section 15(1)(a) of the FOI Act, on the basis that they did not exist or could not be found.

Section 15(1)(i)

This section allows an FOI body to refuse to grant a request where the request relates to records already released to the same or a previous requester, where the records are available to the requester concerned. The IPS refused access to all records sought in this case under section 15(1)(i). Its position was that these records are already available to the applicant, as they were previously released in response to previous FOI requests.

However, during the course of this review, the Investigating Officer asked the IPS to clarify its position in relation to the records previously considered for release. As set out above, the IPS stated that the records relating to point 1 were refused in part and those relating to point 2 were refused in full under the FOI Act. While it stated that a record relating to point 3 was released, in its submission to this Office, it indicated that were it to reconsider this record for release, certain exemptions might apply.

The purpose of section 15(1)(i) is to negate the need for public bodies to provide additional copies of records that have already been released and are available to the requester. It is evident from the IPS’s submissions in this case that at least some of the records which the IPS had stated were released previously to the applicant, were either not released to him in full or not released at all. In the circumstances, I cannot find that the records were previously released to the applicant and are available to him. Accordingly, I find that the IPS was not justified in refusing the applicant’s request for access to records relating to points 1, 2 and 3 above under section 15(1)(i) of the FOI Act.

However, as the IPS has indicated that it considers that exemptions may apply to information contained in the records concerned, I do not consider it appropriate to simply direct the release of the records sought. In the circumstances, I am satisfied that the most appropriate course of action is to annul this part of the IPS’s decision and to direct it to conduct a new decision-making process in relation to the records identified relating to points 1, 2 and 3. The normal rights of internal review and appeal to this Office will apply to the new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the IPS’s decision. I affirm its decision to refuse access to additional records under section 15(1)(a) of the FOI Act. I annul the decision of the IPS to refuse access to records under section 15(1)(i) and I direct it to undertake a fresh decision-making process on the applicant’s request for records in accordance with the provision of the FOI Act.

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.
 

 

Sandra Murdiff
Investigator