Whether the Department was justified in refusing access to records of personal information belonging to the applicant under section 15(1)(a) on the grounds that the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them
6 January 2020
On 14 January 2019, the applicant sought access to all records held by the Department relating to him, excluding any records that were previously sent by, or to, him. In a decision dated 13 February 2019, the Department released 99 records to the applicant. On 22 August 2019, the applicant sought a review by this Office of the Department’s decision. He argued that the Department had not released certain files relating to his request. On 12 March 2019, the Department refused to release any further records on the ground that no further relevant records could be found.
On 22 August 2019, the applicant sought a review by this Office of the Department’s decision. He suggested that the HR Division was withholding other records. 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 and to communication between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records previously released to the applicant. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned with whether the Department was justified in refusing access to additional records relating to the applicant on the grounds that no further relevant records exist or can be found after all reasonable steps have been taken to locate them.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in "search" cases generally consists of the steps actually taken to search for records along with miscellaneous 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 the review, the Department provided details to this Office of the searches carried out to identify records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Department provided details of seven individuals who carried out searches on their mailboxes in an effort to identify relevant records. The applicant suggested that three additional named individuals should have been consulted. The Department subsequently clarified that the relevant mailboxes were also searched. The Department also said that searches were carried out on the HR server. It said that the keywords used included two email addresses belonging to the applicant, his name, PPSN and staff number.
In his FOI request, the applicant stated that he uses three variations of his name; the English spelling, the Irish spelling and a combination of both. When the investigating officer queried the search terms used by the Department, it confirmed that searches were carried out using the English spelling and the Irish/English combination spelling. The Department stated that it did not carry out searches using the Irish spelling of the applicant’s name as it had never communicated with the applicant using that spelling.
The applicant submitted that he believed that further records should exist relating to a Dignity at Work investigation. The Department outlined that when a report finds that no further action is required in relation to the appellant or the claimant, the report is deleted. It outlined that this practice is to ensure there is no perception of guilt or innocence retained on the individual’s file.
While it does appear that the Department sought to carry out searches of all locations where it might expect to find relevant records relating to the applicant, I consider that its failure to search for records using the Irish spelling of his name to be an important omission. While the Department said it did not communicate with him using that spelling, I note that in the records released, a small number of records refer to his Irish name.
In the circumstances, I must find that the Department did not carry out all reasonable searches for relevant records in this case. I consider that the appropriate course of action to take is to annul the Department’s decision, 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. In making that decision, the Department should ensure that all three variations in the spelling of the applicant’s name are used by all relevant staff involved. 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 fresh decision.
Having carried out a review under section 22(2) of the FOI Act. I hereby annul the decision of the Department to refuse the applicant’s request for records relating to him. I direct the Department to conduct a fresh decision-making process in respect of the applicant’s request.
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.