Case number: OIC-139366-Y9G9N8

Whether the Department was justified in refusing access to various records relating to Temporary Veterinary Inspectors (TVIs) under sections 15(1)(a) and 15(1)(d) of the FOI Act

 

12 October 2023

 

Background

References to the applicant in this decision may be taken as referring to the applicant or to his solicitor, as appropriate. On 3 August 2022, the applicant made a twenty-five-part request to the Department seeking access to various records relating to the classification of TVIs as independent contractors for Revenue purposes. In a decision dated 14 September 2022, the Department refused the applicant’s request under section 15(1)(a) of the FOI Act, with the exception of records relating to what it described as part 6 of his request. The applicant sought an internal review of the Department’s decision. He also queried the Department’s numbering of the parts of his request, queried its decision that no records were available relating to part 1 and disputed that records relating to part 2 of his request were in the public domain. On 30 May 2023, the Department stated that it was proceeding on the basis that its decision to release records in relation to part 6 was not under review and it proceeded to affirm the remainder of its original decision. On 12 June 2023, the applicant applied to this Office for a review of the Department’s decision.

During the course of the review, the Department clarified that it was relying on section 15(1)(d) of the FOI Act in respect of parts 2 and 8 of the applicant’s request and section 15(1)(a) in relation to the remaining parts of the request.

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 and to the submissions made by the applicant and by the Department to this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing, under sections 15(1)(a) and 15(1)(d) of the FOI Act, the applicant's request for access to various records relating to TVIs.

Preliminary Matters

It is important to note that 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 to satisfy me that its decision was justified.

I also note that there was some confusion between the parties over the numbering system used by the Department when processing the request. The applicant’s original request consisted of a single numbered paragraph setting out the subject matter of the request, followed by 25 unnumbered bullet points. I am satisfied that the Department clarified its numbering system in its internal review decision and I have adopted the numbering system used by the Department in its original and internal review decisions

Analysis and Findings

Section 15(1)(a) – parts 1, 3-5, 7 and 9-25

As outlined above, during the review the Department stated that records do not exist in respect of parts 1, 3-5, 7 and 9-25. Section 15(1)(a) of the FOI Act provides that an FOI body may refuse to grant the request where the record concerned does not exist.

I should explain at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Section 17(4) provides that where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates and where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then it is entitled to refuse the request under section 15(1)(a).

The role of this Office in a case where a request has been refused under section 15(1)(a) is to decide whether the refusal was justified. We will generally have regard to matters such as the steps actually taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. We will also have regard to the relevant circumstances surrounding the matters in question and the information relied upon by the public body when making a decision to refuse a request under section 15(1)(a).

Essentially, the Department’s position is that the applicant did not seek access to records that existed or were held by it, and that addressing his request would require it to “create records, make statements, give opinions or reply to questions”, which it stated it was not obliged to do under the FOI Act.

In its submissions to this Office, the Department said that an “extensive search” by all relevant staff and divisions was undertaken “to confirm that [relevant] records do not exist and have never existed”. It said that it searched “emails, shared drives, soft files and hard files” and that online files and emails were searched “using the keywords of each part of the request”, including “discussions”, “Minister for Agriculture Food and the Marine”, “Attorney General”, “Revenue Commissioners”, “instructions”, “training and equipment”, “legal challenges”, “TVI’s” and “Temporary Veterinary Inspectors.” During the course of this review, the Department indicated that there may be additional relevant material held in an offsite archive relating to parts 1 and 3 of the applicant’s request. The Department subsequently informed this Office that while searches were carried out, nothing relevant to the request had been located.

During the course of the review, the Department provided copies of correspondence between the FOI Unit and the original decision maker, wherein the latter indicated that one point of the request, namely, part 6, was considered to be valid. The Investigating Officer asked the Department to clarify its reliance on section 15(1)(a) of the FOI Act. By way of example, she asked whether it refused part 21 of the applicant’s request ("who controls and monitors the work of the TVI's?") on the basis that it holds no records containing the information sought or because it was not a request for a record but a question. In response, the Department reiterated that it is not required to “create records, make statements, give opinions or reply to questions” under the FOI Act.

The Investigating Officer also sought clarity on the outcome of its keyword searches. The Department stated that records were identified on foot of its searches but they were outside the scope of the request.

In relation to the searches carried out, it seems to me that the keywords and search terms used by the Department were very broad and did not reflect the specific wording of each part of the applicant’s request. Moreover, while there is no obligation on an FOI body to create a record by collating information from hardcopy records, there is an obligation to do so where the information is held electronically. However, the Department has taken a position that it is not required to “create records” and as such, it appears it did not consider section 17(4) of the FOI Act when processing the applicant’s request.

I accept that the applicant’s request is extensive and broad. I also accept that some parts of his request are not easily interpreted. I further accept that the information or answers sought in some other parts may not necessarily be contained in records held by the Department. However, it seems to me that many parts of his request are clearly seeking access to records such as records of correspondence or of discussions about the matters concerned. It also seems to me that while the records released in relation to part 6 of the applicant’s request (“certified copies of all directions, instructions, training and equipment supplied to those TVI’s and by whom and on whose behalf”) could be argued to contain some of the information sought in other parts of the applicant’s request, at least to some extent. In any event, I am satisfied that additional records relating to the matters at hand could reasonably be expected to exist. Furthermore, the Department has not provided any explanation as to how it arrived at its decision that the records sought do not exist. By way of example, a public body could explain the decision making process regarding a change in how staffing positions are filled and provide details of the records it would expect to exist in this regard. The Department has chosen not to provide any submissions to this Office in this regard.

As stated above, requests for information or for answers to questions are not valid requests under the FOI Act, except to the extent that they can be reasonably interpreted as a request for records that contain the information or the answers to particular questions.  In my view, the Department appears to have taken an unreasonable and unduly narrow interpretation of the applicant’s request. It seems to me that with the exception of parts 2 and 8, which were refused under section 15(1)(d), and part 6, which was granted, the Department essentially decided that the applicant’s request was invalid as it was not a request for records. In the circumstances, it is not clear to me that it carried out adequate steps to locate records containing the information or answers sought in this case.

The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record(s) sought. The Department undertook searches using broad keywords which identified no relevant records, it has essentially confirmed that it considered the majority of the request to be invalid and did not consider whether records containing the information sought might exist or its obligations under section 17(4). In the circumstances I cannot find that all reasonable steps have been taken to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Department was not justified in refusing parts 1, 3-5, 7 and 9-25 of the applicant’s request under section 15(1)(a) of the FOI Act.

I consider the most appropriate course of action to take is to annul the decision to refuse the applicant’s request under section 15(1)(a), the effect of which is that the Department must consider parts 1, 3-5, 7, 9-25 of 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.

Section 15(1)(d) – parts 2 and 8

The Department refused parts 2 and 8 of the applicant’s request under section 15(1)(d) of the FOI Act. Section 15(1)(d) provides that access to records may be refused if the information is already in the public domain.

Part 2 of the applicant’s request sought “[d]etails of any legal challenges made against [the] designation [of TVIs as independent contractors] by or on behalf of any Union or other Body or individual against the Department […], the Minister, Ireland and or the Attorney General in relation to same together with appropriate references or any cases that have been determined in that regard in all the Irish Superior Courts.”

In its submissions to this Office, the Department said that it presumed the information sought at part 2 of the request related to the legal case of Barry & Others v Minister for Agriculture and Food Record No. 334 SP/2007 which it said was contained on “legal databases”. It said that it is not aware of any other legal cases.

Part 8 of the request sought access to “[the appropriate information and records as to what contribution or authority or rights (if any) where such TVI’s have a say on their level of pay, their contractual terms, as well as all indicia of control the Department has over these Veterinary Surgeons.”

In its submissions, the Department said that it presumed that this information related to Conditions of Engagement “S.I. No. 662/2019 – Registered Employment Agreement (Veterinary Ireland) Order 2019”, which it said was accessible on the Irish Statute Book website.

From a brief search of the www.courts.ie website, I note that there appears to have been a number of related cases concerning Barry & Others v the Minister for Agriculture other than the one specifically cited by the Department. The judgments in these cases are available online. I also note that the statutory instrument referred to is available on the Irish Statute website here.

Where a public body relies on section 15(1)(d) to refuse a request, I would expect it to inform the applicant why and where the records could be accessed publically. The Department did neither of these things. Instead it simply informed the applicant that it was refusing these parts of his request because “such record is already in the public domain” in each case.

In the circumstances, I find that the Department was justified in refusing access to the records concerned under section 15(1)(d) on the basis that they were in the public domain. However, in making this finding, I direct the Department to provide sufficient details to the applicant about the records concerned to allow him to identify and access the information if he wishes, e.g. links to webpages or other details of information published.

Additional comments

I would like to take this opportunity to remind the Department of its obligation to give reasons for its decisions on FOI requests. Further to sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various details including:

  • the reasons for the refusal;
  • any provisions of the FOI Act pursuant to which the request is refused;
  • the findings on any material issues relevant to the decision; and
  • appeal rights.

While the Department’s original and internal review decisions referred to the relevant provisions of the FOI Act and included details of the applicant’s appeal rights, it made no findings on material facts and provided no reasons for its refusal of access to records. I would expect the Department to ensure that it decisions in future cases meet the requirements of sections 13(2)(d) and 21(5)(c).

Further engagement

The request on its face is potentially quite broad and in hindsight, it is unfortunate that the Department did not engage with the applicant to clarify exactly what was sought. For the benefit of the parties, I would like to draw their attention to a number of relevant provisions of the FOI Act. First, section 12(1)(b) provides that a request for records must contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. As such, an applicant should make every effort to ensure that the request is sufficiently specific to accurately reflect the information or records sought. A vague or unclear request runs the risk of being misinterpreted or, indeed, of being refused if it does not contain sufficient particulars to allow for the identification of the record sought.

Secondly, under section 11(2) of the Act, an FOI body must give reasonable assistance to a person who is seeking a record under the Act in relation to the making of an FOI request for access to the record. As such, if the Department is in doubt as to the precise nature of the records sought by the applicant, it should first seek to engage with him to clarify the request, thus avoiding possible issues at a later stage concerning the interpretation of the scope of the request.

Accordingly, I would expect the parties to engage in the first instance to clarify the precise nature of the records sought before the Department processes the request afresh in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its decision to refuse access to certain records on the basis of section 15(1)(d). I annul its decision to refuse access to additional records relating to the applicant's request under section 15(1)(a) of the FOI Act, and I direct it to conduct a fresh decision-making process on the relevant parts of his 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.
 

 

Sandra Murdiff
Investigator