Case number: OIC-113915-L4Z3K0, OIC-113896-Y6N4B9
29 July 2022
This decision relates to two separate requests between the same parties on similar subject matter.
In a request dated 17 April 2021, the applicant sought access to all records created between 1 January 2005 and 31 December 2015, in relation to the decision-making process resulting in the designation of the Blackwater Bank and Hempton’s Turbot Bank as Natura 2000 sites, and by which other East Coast sandbanks were not so designated. The applicant explicitly requested all interdepartmental and external communication with all other organisations including the European Commission. The request also sought information on which scientific factors had been taken into account when making the decision, in addition to information on other sites, which had been considered for designation at the time. In a decision, which issued on 18 May 2021, the Department granted access to the records requested. The decision stated however, that due to an IT issue certain archived emails were not accessible, but that the Department would be able to search for these records at a later stage.
On 14 June 2021, the applicant requested an internal review of the decision. The applicant argued that she had not received additional information held by the Department. A decision on the internal review was issued on 9 July 2021, which set out that two additional documents had been identified and were being released subject to redactions. The decision further stated that the Department was still experiencing the same issue accessing archived emails, but that it was unlikely that further records existed.
Separately, in a second request dated 31 May 2021, the applicant sought access to the same records under the extended timeline of 14 February 2013 and 8 April 2017. The applicant noted in her second request that records between 2013 and 2015 were outstanding. In a decision dated 29 June 2021, the Department part granted the applicant’s request and granted full access to 37 out of 117 records. The applicant requested an internal review on 16 July 2021, and the Department issued its final decision on 4 August 2021. The original decision was varied to include three additional records, which had been identified in the course of the second search.
An application for review was received by this office in relation to each of these requests on 4 October 2021, wherein the applicant argued that the original decision had given details of a meeting held on 4 April 2012 between National Parks and Wildlife (NPWS) and the Marine Coordination Group. According to records received as part of a separate request, this meeting was requested by the Marine Institute and the Department of Agriculture Food and the Marine (DAFM). The applicant stated that the minutes or meeting notes in relation to this meeting should have been provided in response to the requests, but they were not. Both of the applications to this Office stated that the appeal is made solely to access these minutes.
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 Council as set out above and to the correspondence between this office and both parties on the matter. I have also had regard to the record specified above which details the meeting.
The Department’s position is that it has released all relevant records and that it has now completed its check of the archived emails, and that the minutes sought have not been found. As stated above, in both applications for review, the applicant stated that she is seeking access to minutes or meeting notes in relation to the meeting which was held on 4 April 2012, between the National Parks and Wildlife and the Marine Coordination Group. This is essentially a search issue under section 15(1)(a), which provides for the refusal of a request where the records sought do not exist, or cannot be found.
During the course of the review by this Office, the applicant sought to expand the scope of both reviews to cover additional records, which had not been mentioned in her application for review. The applicant raised concerns in relation to the Department’s approach to other records which were sought as part of the original request, outlining that there are over two years where records have not been scheduled or released. On consideration of the applications lodged, the investigator informed the applicant that the scope of this Office’s review was confined to the subject matter set out in her original application.
Accordingly, this review is concerned solely with whether the Department was justified in refusing under section 15(1)(a), the record specified in the appellants application to this office.
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 role of this Office 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.
Adequacy of searches
The evidence in “search” cases generally consists of the steps actually taken to search for the 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. Having regards to the information provided I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to be held.
In its submissions to this office, the Department of Housing has specified that at the time of the meeting referred to in record 3, (4 April 2012), the Marine Coordination Group was chaired by Minister Coveney, who was Minister of Agriculture at the time. As such, Marine Coordination Group meetings were arranged by the Department of Agriculture Food and the Marine (DAFM) and not the Department of Housing or National Parks and Wildlife. Accordingly, in a letter in relation to the first request, the Department advised the applicant, that records in relation to the meeting sought may be held by DAFM. As such, the Department has set out that if such a record exists, the Department would not own it and as such, there would be no obligation to keep any copies of same.
It should be noted, that despite the Department’s submissions, Record 3 (which was released to the applicant) does not only refer to a meeting between the Marine Institute and NPWS. It also states that the Marine Institute recommended that the matter be raised at the Department of Taoiseach convened inter – departmental Committee on the Marine, chaired by Minister Coveney, to discuss the various cross – departmental issues raised. It further states that a meeting was held on 4 April 2012. The Department also stated that had the record been found during search and retrieval, it would have been considered for release pursuant to the spirit and obligations of the Act. The Department contends that the searches did not reveal any evidence that the Department had been provided with a copy, or indeed that such a record had ever been created by DAFM. The Department confirmed that DAFM had been consulted in relation to the matter, to directly establish if such a record exists and if it may be shared with the applicant directly; however, it confirmed that DAFM never responded to this query.
In its original submission, the Department stated that it may have been possible that the record would exist in archived emails from the time period. The Department has since informed this Office that the archived emails of relevant staff members were searched once they became accessible. According to the Department, these staff members were to search for this record and for any other records covered by the original request, however, it confirmed that no further records were found.
The Department also stated that the Department and NPWS, were guided by the requirements of the National Archives Act 1986 and Regulations 1988 in the management of its records between 2011 and 2017. It has stated that, on this basis, the practice is not to destroy records of the nature requested here.
With regard to the search and retrieval of records process carried out, the Department has set out that it took the following steps:
In respect of the first application for records – the National Parks and Wildlife sections and staff (current and departed) that may hold or have held records relevant to the request were identified. Staff still in post were contacted by email and requested to submit the relevant records from the specified timeframe. Records related to the request were all stored in one shared folder on the Shared Drive, so that staff in different locations could review files without having to send emails of large sizes.
According to the Department, as well as searching the shared file repository for relevant records, the electronic files of staff were also searched including those who had left the NPWS. The files were searched by sight and by using the broad search-term “sandbanks” so that any relevant records would be produced. Any files that seemed to be relevant to the scope of the request were extracted and checked for relevance to the request. According to the Department’s submissions, very few, if any, additional records were obtained through this part of the search process.
The Department has also claimed that every effort was made to ensure that records that may have been misplaced or misfiled were located, through the use of very broad keyword searches, and scanning of document titles in folders not clearly labelled as being relevant to the scope of the request, by sight. During this process, the Department states that it noticed that one record included references to the involvement of another section that had already been contacted for records. This section was contacted again to make sure that it had conducted thorough searches for all relevant records. On foot of this, a second search was conducted, which resulted in an additional record being found.
In relation to the issue with archived emails, staff were advised that they may hold relevant records which had been automatically archived. According to the Department access to archived emails had not been available for a number of years. Due to potential relevance to this request and other requests, the IT department were contacted to ask if and when these archived emails would become available. The applicant was originally advised of these difficulties in accessing potentially relevant emails and that she would be contacted again if this was resolved. As it fell out outside the statutory timeframe for the Department’s response, the applicant was advised that she would be contacted again once access had been restored. As outlined above, once the archived emails became accessible, a search was conducted for records relevant to the requests. This did not result in any further records being found.
The Department contends that it is not likely that final records were destroyed. It states that due to the nature of the work involved and the permanent nature of the designations, files/documents are generally retained in the expectation that the supporting information will be needed in the future.
In respect of the second request, the Department provided the following details:
For the purpose of this request, the dedicated sub-folders for the sites in question were searched manually and all relevant files were identified. In addition, to account for the possibility of files having being stored in other folders, electronic searches were carried out on the wider ‘Designations’ folder using broad search terms e.g. ‘sandbanks’ and narrow search terms e.g. ‘Blackwater banks’, ‘hempton’, ‘kish’ and ‘bray’. No further documents were located.
In relation to the document referenced by the applicant in her appeal, record 3 refers to a meeting between the Marine Institute and NWPS. It was noted that the electronic search of the file/folder names and file contents of the wider ‘Designations’ folder was conducted using the term ‘marine institute’. This search did not discover any documents relating to this meeting. In addition to the above, all hardcopy files are given a reference number and details of the folders are held in an excel file named “Official Files Database”. An electronic search of this file was conducted using the terms mentioned above. According to the Department’s submissions no additional relevant documents were located.
Finally, the Department clarified that the designation of sites as Special Areas of Conservation has proven controversial in the past and has resulted in the Department being taken to Court. As such, it has stressed that it is crucial that all documentation relating to designation of sites is retained and no documents destroyed.
In her final submissions to this Office, the applicant clarified that the original request spanned the period to 31 December 2015 and the last record which was received was from 2012, accordingly there was two years in which no records were released. The applicant noted that Record 25 from 13 February was an email thread detailing arrangements for an important meeting on 18 February 2012 but claimed that no details of this meeting had been released. She contends that the Department has failed to release the information about this meeting at which the designations were discussed. She further noted that record 25 also refers to the NPWS meeting with Simon Coveney and the Marine Coordination Group (MCG), although the date of that meeting was clarified in Record 3, which was released pursuant to the first request. The applicant also stressed that she was separately engaging with DAFM in relation to the meeting and stated that she had received details from DAFM, having taken the Department of Housing’s advice and followed up on this separately.
The onus is on the Department to satisfy this Office that its decision was justified in finding that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I consider that the Department has responded appropriately and provided clear details in relation to searches carried out in respect of both FOI requests.
It is the Department’s positon that in light of searches undertaken, it is satisfied, that the records either are not held by it or do not exist.
It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. Considering all of the steps taken when processing these requests, I am satisfied that the Department has taken all reasonable steps in an effort to locate the records with the scope of these reviews.
I find, therefore, that the Department was justified in refusing access to the meeting minutes from 4 April 2012, 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 Department of Housing Planning and Local Government’s decision to refuse access to the minutes identified in the applicant’s applications for review 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.