Case number: OIC-139944-P5K1Y2

Whether the Department was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request relating to correspondence sent by him to various public bodies on the basis that no such records exist or could be found; and in refusing further records relating to his personnel file under sections 15(1)(a), 31(1)(a), 37(1) and 42(f) of the FOI Act

 

3 April 2024

 

Background

On 6 March 2023, the applicant, who is a former school teacher, made the following two-part FOI request to the Department for the following records:

Part 1

Any calls, emails, notes, memos, briefings, correspondence, minutes and/or any other records held in relation to or arising from the following correspondence:

  1. Pension application letter to An Taoiseach and the Minister for Education dated 19 April 2021.
  2. Letters to the Comptroller and Auditor General dated 10 May 2022, 28 June 2022 and 11 July 2022.
  3. Letter to the Government of Ireland dated 31 August 2021.
  4. Letters to the Chief Justice dated 30 January 2023, 20 December 2022 and 4 March 2022.
  5. Letters to the President of Ireland dated 22 September 2022 and 13 February 2023.
  6. Letters to the Standards in Public Office Commission dated 22 September 2022 and 20 December 2022.

Part 2 - A complete copy of his personnel file.

Part 1 of the Applicant’s FOI request – records relating to various correspondence

On 29 March 2023, the Department wrote to the applicant informing him that a number of sections within the Department had conducted searches and no records were found relating to part 1 of his request. The Department asked the applicant to provide further information to help locate the records sought and referred the applicant to section 12(1)(b) of the Act which requires the requester to provide sufficient particulars to enable the record(s) to be identified. In reply, the applicant suggested searches of meetings and minutes between the Minister and her officials including the Secretary General of the Department and listed a number of areas which might be searched.  

On 27 April 2023, following further communications between the parties, the Department emailed the applicant saying it had made further enquiries within a number of areas of the Department and was unable to identify any records relevant to part 1 of his request. It again asked the applicant to provide further information that could help identify the records he sought in part 1 of his request. The Department did not, however, issue a decision on part 1 of the applicant’s request.

Part 2 of the Applicant’s FOI request – his Personnel File

On 21 April 2023, in separate correspondence about his personnel file, the Department part-granted the applicant access to his personnel file. It released approximately 1,000 pages of records in full or in part, refusing access to information contained in a small number of records under sections 31(1)(a) and 37(1) of the FOI Act. 

On 27 April 2023, the applicant requested an internal review of the Department’s decision on his request. Among other things, the applicant said he is aware there are further records that had not been provided to him. On 30 May 2023, having not received a response to his request for an internal review, the applicant sought a review of the matter by this Office. On 26 June 2023, following a request by this Office, the Department wrote to the applicant affirming its position to part-grant his personnel file. In regard to part 1 of the applicant’s request, the Department said “In an email dated 27/04/2023 you were asked to provide further information to us which could help identify the records you seek in Part 1 (i to vi). As you have not provided any further information it is not possible for the Department to conduct any further searches for the requested documents.” On the same day, the applicant applied to this Office for a review of the Department’s decision.

During the course of this review the Department provided submissions to this Office in support of its decision on both parts of the applicant’s request. The Investigating Officer provided the applicant with details of these submissions, including the Department’s reasons for concluding that additional relevant records do not exist. The applicant was invited to make further submissions, which he duly did.  The applicant in his submissions stated that the legal privilege exemption, applied to a number of records relevant to part two of his request, was waived on the basis that a letter dated 12 July 2002 was released as part of the applicant’s FOI request on 23 April 2023. Additionally, the applicant also alleged that documents had been deliberately removed by a high ranking official in the Department. The Investigating Officer also invited the applicant to make submissions in regard to section 42(f) of the Act, as some of the information contained in the records refused by the Department under section 31(1)(a) of the Act was created by the Chief State Solicitor’s Office.

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 referred to above and to the submissions made by both parties to this review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant contends that additional records should exist relating to both parts of his request and does not agree with the redactions made by the Department to his personnel file. Accordingly, this review is concerned with whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s request on the basis that no such records exist or can be found, and whether the Department was justified in refusing certain information from his personnel file under section 31(1)(a) and section 37(1) of the FOI Act on the basis that it is legally privileged or contains personal information of other parties. Furthermore, as certain records refused by the Department under section 31(1)(a) of the Act were created by the Chief State Solicitor’s Office I will consider the relevance of section 42(f) of the Act to those records.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I wish to make a number of preliminary comments.

Firstly, in regard to the Department’s handling of part 1 of the applicant’s request, I wish to make the following comment. In its submissions to this Office, the Department said “Following the receipt of the original FOI request, the FOI Unit engaged with the requestor under Section 12(1)(b) of the FOI Act relating to Part 1 (i to vi) of his request. The unit engaged with him again relating to his further revised request. Following a search, the Department was unable to identify any records held that were relevant to Part 1 of his request.” While the Department engaged with the applicant to clarify what records he was seeking, it did not issue a substantive decision on part 1 of the applicant’s request. In its submissions to this Office, the Department said it has taken all reasonable steps to identify records relating to the request, based on the particulars supplied by the applicant. If the Department considered it had undertaken all reasonable steps to locate the records, it was open to the Department to refuse the request under section 15(1)(a) of the Act, which it effectively did during the course of this review. Alternatively, if the Department considered that the applicant had not provided sufficient particulars to enable the records to be identified, as required under section 12(1)(b) of the Act, as it did when it wrote to the applicant on 29 March and again on 27 April 2023, section 15(1)(b) of the Act may have been relevant. That section provides that a request may be refused where the request does not comply with section 12(1)(b) of the Act. It should be noted, however, that a request cannot be refused under section 15(1)(b) unless the FOI body has assisted or offered to assist the requester to amend the request such that it no longer falls to be refused under section 15(1)(b), as provided in section 15(4) of the Act. While I acknowledge the Department was endeavouring to comply with section 15(4), it did not inform the applicant of any provision under the FOI Act for refusing this part of his request. I will consider the Department’s effective refusal of part 1 of the applicant’s request under section 15(1)(a) of the Act below.

Secondly, during the course of this review the Department provided submissions regarding the Board of Management Meeting Minutes (BMMM) of the school where the applicant was employed. Initially, the Department said that it had withheld information in these records under section 37(1) of the FOI Act. However, during the course of this review, the Department stated that these records contained information that was not within the scope of the applicant’s request. It stated that while these records are on the applicant’s personnel file, this is merely a procedural step taken if the matter discussed during the meeting related to a disciplinary or other matter that the Department require knowledge of. The Department said that those parts of the BMMM which do not reference or discuss the applicant are outside the scope of his request, as they do not constitute part of his personnel file. It said that only those parts of the minutes of the meeting which refer to the applicant, and which were released to him, are within the scope of his request. Having reviewed those parts of the minutes that were refused by the Department, it is clear that the remaining information contained in the BMMM does not relate to the applicant. Accordingly, I am satisfied this information is outside the scope of the applicant’s request and I do not intend to consider access to this information any further.

Thirdly, in his application to this Office, the applicant noted that the Department had released information in this case that had been “denied” to him in the past. For the benefit of the applicant, I wish to note that this review is confined to the Department’s decision on access to the records he sought in his original request in this case. We have no role in examining the applicant’s claim that he was denied particular information in the past. Furthermore, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Fourthly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Finally, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Analysis and Findings

Whether further records exist - Section 15(1)(a) of the Act

In his submissions to this Office, the applicant claims further records exist and said that no searches had been undertaken in the Minister’s Office. The applicant said that documentation under the control of a named member of staff at the Department is missing from the records released to him. Additionally, the applicant said that he had not been provided minutes of a meeting between the Minister for Education and the Taoiseach dated 15 November 2022 arising from with part 1 (vi) of his FOI request. Essentially, the applicant is of the position that records are missing from both parts of his FOI request.

Section 15(1)(a) provides that an FOI body may refuse to grant a request where 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 means 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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found.

In its submissions to this Office, the Department provided details of its record management practices and of the searches it undertook to locate records relevant to the applicant’s request, details of which were provided to the applicant during the review. The Department said that while its records management unit has overall responsibility for record management and is responsible for the publishing of policy and procedure, all staff are responsible for managing the records they create, receive or maintain on a day-to-day basis. It stated that records and files in active use are saved both electronically and in hard copy paper files. It said that the hard copy files that are currently in use are kept in filing cabinets or in open shelving in the relevant line section. The Department said that Sections are responsible for the management of their own files, and that dormant or inactive files are kept in a managed facility and that these files are sent to this facility with a detailed listing of the contents. The Department said that under National Archives legislation, official records cannot be destroyed without authorisation and an accompanying disposal certificate from the National Archives. It stated that it is not aware of any records having been destroyed during the relevant time period.

The Department said that all relevant individuals and Units were consulted in the processing of the applicant’s request by the FOI Unit within the Department. The Department stated that searches were conducted in the Secretary General’s Office, School Governance Unit, Communication Unit, Internal Audit Unit, Data Protection Unit, Central Policy Unit, Inspectorate Unit, Pensions Section, Post Primary Payroll Section, and the Teachers/SNA Terms and Conditions Section. It stated that each individual Section/Unit responded to the FOI Unit after the searches were conducted stating that they do not hold further records relevant to the applicant’s request.

The Department stated that the above referenced Sections/Units examined their file listings on all relevant electronic file paths and directories in addition to hard copy files and off-site storage file listings that are related to the type of information the applicant sought. It said that a detailed search involved a search of folders and records where it was reasonably expected to find information relevant to the applicant’s request. It stated that these records included letters, emails, excel spreadsheets, word and pdf documents. The Department stated that it is reasonably expected that records would be stored in both hard copy format and/or electronic format by individual Sections/Units. The Department stated that keyword searches were used during this searching, using the applicant’s name, and applying different spelling options.

Regarding access to records of a meeting between the Minister for Education and the Taoiseach on 15 November 2022, the Department said that each Unit/Section contacted the FOI Unit of the Department responded that following searches of their file listings (electronic and hard copy) that they do not hold records related to this request. It stated that this includes records relating to a calendar/diary appointment, an agenda, an attendance sheet or minutes of a meeting of 15 November 2022. I note that the applicant made a similar request to the Department of An Taoiseach, which was the subject of a review by this Office in case OIC-137911-Q3B7F4, wherein he also sought access to records of a meeting between the Minister for Education and the Taoiseach on 15 November 2022.  In that case, the Department of the Taoiseach said that no such meeting took place, and as a result no records relating to such a meeting exist.

Regarding Part 1(i) of the applicant’s request, a pension application letter to the Minister for Education sent on 19 April 2021, the Department stated that any correspondence would be sent to the line unit, the Post-Primary Teacher Payroll Unit, for answer. It stated that the Minister’s Office does not hold records of any correspondence, files or figures. The Department said that all correspondence and data (if any) are held by the individual sections within the Department. However, the Department stated that if correspondence is received in the Minister’s Office a standard acknowledgment is issued. As outlined above, the Department stated that all relevant Units of the Department were searched for records relating to the applicant’s request and no records relevant to the applicant’s request were found.

Regarding the records relating to Part 1 part (i-vi) of the applicant’s request, the Department stated that it is not in a position to confirm whether the records requested by the applicant are held by other public bodies. It stated that the Department does not have access to such records and as a result can neither confirm or deny whether the record exists. Additionally, the Department stated that where correspondence is forwarded from other public bodies, if it is sent to the Minister’s Office, the Secretary General’s Office or the Correspondence Unit of the Department, the correspondence would be acknowledged and sent to the appropriate unit for response. It stated that searches were carried out in the relevant units outlined above and no records relevant to the applicant’s request were found. 

In his submissions to this Office regarding part 2 of his request, the applicant said that certain named individuals held records relating to his personnel file that were missing from the records he received. The Department said that those individuals were not referenced in the applicant’s original FOI request of 6 March 2023. The Department said that one of the named individuals had since retired from the Department, and the other named individuals no longer work for the Department. However, the Department stated that all relevant individuals and Units of the Department were consulted in the processing of the applicant’s request. The Department considers it has taken all reasonable steps to identify records relating to the request, based on the particulars supplied by the applicant.

As stated above, the Investigating Officer provided details of the searches to the applicant and invited him to make further submissions if he wished. In response, the applicant said he is aware that documents issued by him and others including submissions, responses, evidence documentation, reports and response to reports have been deliberately removed by a high ranking official within the Department. The applicant did not, however, identify any specific records nor the individual who is alleged to have removed the records. The applicant also provided a copy of correspondence he had sent to the Minister for Education in July and August 2023 wherein he asked a series of questions relating to his dispute about his employment as a teacher. The applicant submitted that he had not received a response to concerns raised in his correspondence. While the applicant may have unresolved issues with the Department concerning his dispute, as I have noted above, this Office has no role in examining how the Department carries out its functions, nor do we have any role in eliciting a response to those queries from the Department. This review solely concerns a review of the Department’s decision on access to the records sought in his FOI request dated 6 March 2023.

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 records should exist 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 records sought. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where the records that an applicant believes ought to exist have not been located.

The FOI Act does not require absolute certainty as to the existence or location of records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. The question I must consider, therefore, is whether the Department has taken all reasonable steps in this case to ascertain the whereabouts of the records sought. Having considered the submissions made by the applicant and the Department in this case, and in the absence of evidence to suggest otherwise, I am satisfied that the Department has taken all reasonable steps to locate the records sought by the applicant. While I appreciate that the applicant does not accept the Department’s position, there is no evidence before me to indicate that further searches are warranted. In the circumstances, I find that Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to the records sought by the applicant in part 1 of his request and in refusing access to further records relating to his personnel file on the ground that no further records exist or could be found after all reasonable steps to ascertain their whereabouts have been taken.

Restriction of the FOI Act - Section 42(f) of the Act

Before I consider the Department’s refusal of records under section 31(1)(a) of the Act, I wish to note that within those records refused by the Department under section 31(1)(a) of the Act is correspondence it received from the Chief State Solicitor’s Office (the CSSO). Section 42(f) of the Act provides that the Act does not apply to a record held or created by the Attorney General other than a record relating to general administration. The CSSO is a constituent office of the Office of the Attorney General. I am satisfied that the relevant records do not relate to general administration. Accordingly, I find, further to section 42(f) of the FOI Act, that the Act does not apply to those records.

Legal professional privilege - Section 31(1)(a) of the Act

The Department refused access to certain records held on the applicant’s personnel file under section 31(1)(a) of the Act on the basis that these records attract legal professional privilege. Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

  • Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • Confidential communications made between the client and a professional legal adviser or the professional legal adviser and third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of “once privileged always privileged” applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege.  Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. Having examined the records in question, I am satisfied that they were created for the purpose of obtaining legal advice and also contain the advice given.

In his submissions to this Office, the applicant said that a letter dated 12 July 2002 which was released to him by the Department, should have been disclosed by the Minister for Education, the Attorney General, and the Chief State Solicitor as part of material facts to their application to the High Court (in regard to his case against the Department). The applicant stated that the privilege attached to records that form part of a continuum of correspondence that results from the original request for advice is now waived by virtue of issuing this document dated 12 July 2002. He stated that as a result the records withheld as part of this request should be disclosed to him.

In its submissions to this Office, the Department said that the records it withheld on the basis of legal advice privilege contain communications from the Department to its legal side for the purpose of obtaining legal advice and deliberations. In relation to the letter dated 12 July 2002, the Department stated that this record did not waive privilege over the records withheld from the applicant in relation this request. It said that the letter in question is from the school’s solicitor to the chair of the school’s board of management, and not to the Department, so it had no reason not to release the letter. It stated that this record does not constitute a waiving of the Department’s legal privilege covering advices from its own legal representatives. Having regard to the content of the letter in question, I do not accept the applicant’s argument that the Department has effectively waived legal privilege through the release of the letter dated 12 July 2002.

In summary, I am satisfied that the Department was justified in refusing access to those records it refused under section 31(1)(a) of the Act.

Personal information - Section 37(1) of the Act

The Department redacted a small amount of information contained in the applicant’s personnel file under section 37(1) of the Act as it relates to individuals other than the applicant.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant access to a record if release of information contained in the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record, or parts thereof, shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information, including (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

In its submissions to this Office, the Department said that it refused access to personal information contained in the applicant’s personnel file that relates to other individuals, including information relating to the appointment of other teachers, PPS numbers and phone numbers. I am satisfied that the personal information contained in these records relates solely to individuals other than the applicant. I am also satisfied that it is not captured by the exclusion to the definition of personal information in relation to staff of FOI bodies and I find, therefore, that section 37(1) applies. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1) in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I also find that the Department was justified under sections 31(1)(a), 37(1) and 42(f) of the Act in refusing access to the information it withheld from the applicant’s personnel file.

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.

 

Richard Crowley
Investigator