Case number: 170558
On 14 March 2017 the applicant requested access to records relating to a decision to transfer him and a number of his colleagues to a new role within the Department. On 25 April 2017 the Department released three records relating to the redeployment of certain staff comprising records of two meetings with the relevant union and a letter to the union with an attachment. It refused access to certain records comprising specific instructions issued relating to the transfer on the ground that the records sought do not exist. Following a request for internal review, the Department affirmed its original decision on 6 June 2017. On 5 December 2017 the applicant sought a review by this Office of the Department's decision.
During the course of the review, this Office provided the applicant with details of the Department's submissions regarding the searches it conducted in response to his request. Mr Flood of this Office informed the applicant of his view that the Department had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records and that it was justified in refusing the request on the ground that the additional records sought do not exist or cannot be found. He invited the applicant to make a further submission on the matter. As the applicant has not responded to date I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Department as set out above and to the communications between this Office and both the Department and the applicant on the matter.
This review is concerned solely with the question of whether the Department was justified in refusing access, under section 15(1)(a), to additional records comprising specific instructions issued relating to the transfer of the applicant and a number of his colleagues on the ground that the records sought do not exist.
Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In a submission to this Office, the Department provided details of the searches conducted in response to the applicant's request. As this Office has provided the applicant with those details already, I do not propose to repeat them in full. In short, the Department stated that it identified three relevant files from its electronic file registry relating to the redeployment of staff from the relevant area and a related grievance issue. It stated that all three files were examined for relevant records, as was the applicant's personnel file. It stated that the relevant staff member from the Human Resources Unit who was responsible for dealing with the redeployment checked her emails and folders, as did the area superintendent the applicant identified in his request, to no avail. The Department maintained that all relevant records have been released and that the additional records sought do not exist.
While the applicant may be unhappy with the Department's response, this review is confined to considering what relevant records actually exist as opposed to what record the applicant considers should exist. No evidence has been presented to me to suggest that the specific records sought were ever held by the Department. Having considered the details of the searches undertaken, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. I find, therefore, that the Department was justified in refusing access to any additional records on the ground that no further relevant 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 to additional records coming within the scope of the applicant's request under section 15(1)(a) of the FOI Act.
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.