Case number: OIC-129056-C9X5C7
30 November 2022
On 19 August 2022, the applicant made the following two-part request to the Department:
In a decision dated 20 September 2022, the Department granted part 1 of the applicant’s request and provided details of relevant annual expenditure for the years sought. It refused part 2 of the request under section 15(1)(a) of the Act. It said it does not hold records in respect of investigations as this would be a matter for An Garda Síochána (AGS). In her request for an internal review, the applicant referenced a named medical expert who she alleged was under investigation in the UK for misleading the courts during the period in question and was later found to have misled the UK court. She argued that details of the named individual’s costs should be released and that she could then agree that the Department is unaware of how much, if any, it pays to other medical experts who are under investigation for misleading the courts abroad.
On 22 September 2022, the Department affirmed its original decision. It said the applicant had provided additional information which, had it been provided in the initial request, may have resulted in a different decision. It suggested that the best course of action was for the applicant to submit a new request including the specific details included in her application for internal review.
On 23 September 2022, the applicant applied to this Office for a review of the Department’s decision. In her application, she said that when the named medical expert gave evidence [in an Irish criminal trial], the fact that the expert was under investigation was known to the defence, prosecution and the trial judge and she said it is difficult to understand how it was not known to the Department.
During the course of the review, the Investigating Officer provided the applicant with details of the Department’s submissions wherein it outlined its reasons for concluding that the records sought do not exist. The applicant was invited to make a further submission on the matter, which she duly did.
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 correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any records containing the information sought at part 2 of the applicant’s request on the ground that no records containing the information sought exist.
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 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.
It is important to note at the outset that the applicant sought certain information she believes that the Department must hold, as described above. While the purpose of the Act is, indeed, 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 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 that is the end of the matter.
The Department’s Submissions
In essence, the Department’s position is that it holds records of payments made to defence medical experts but that the records do not exist in the format requested by the applicant at part 2 of her request. It said the payments made to all defence medical experts, including those who may have been under investigation for misleading the court in another country, have been included in the total amounts provided to the applicant in response to part 1 of her request. It said it is not possible for the payment records released at part 1 of the request to be further categorised by the investigation status of the receiver sought at part 2, as this information has not at any point been known to the Department.
Responding to the arguments raised by the applicant in her application for review, the Department said the fact that the defence, prosecution and trial judge would know an expert was under investigation in another jurisdiction during the course of a trial does not mean the Department would know this information as the Department was not in any way involved in the case cited by the applicant. It said the Director of Public Prosecutions (DPP), the prosecution, and the Courts Service are fully independent of the Department. On that point, it said section 4(3) of the Courts Service Act, 1998 states “[t]he Service shall, subject to this Act, be independent in the performance of its functions” where the Service refers to the Courts Service. It said section 2(5) of the Prosecution of Offences Act, 1974 states “[t]he Director shall be independent in the performance of his functions” where the Director refers to the Director of Public Prosecutions.
The Department said information regarding the reliability or lack thereof of any experts called by either the defence or prosecution in such a case would not, in the normal course, be known to the Department. It said the only records pertaining to any medical expert involved in a criminal legal aid defence relate to expenditure on individual named medical experts and emails between the Department and the solicitor leading on a case, and sometimes between the medical expert and Department directly. It said these emails concern requests for sanction to engage the services of an expert, and receiving and approving the invoice. It said at no point is the Department privy to any investigations the medical expert may be under. It said it is solely the responsibility of the solicitors acting for the defendant to ensure that they have engaged a reliable expert.
On the matter of the searches carried out, the Department said due to the subject matter of the request, it was assigned to the Criminal Legal Aid Unit of the Department. It said searches were conducted for records on eDocs folders relevant to the Criminal Legal Aid unit. It said that while records of payments made to experts were identified, it was unable to categorise the records based on payments made to experts known to be under investigation for misleading the court in another country, as the Department holds no such knowledge.
The Applicant’s Response
As I have outlined above, the Investigating Officer notified the applicant of the details of the Department’s submissions and invited her to submit any further comments she might have on the matter. In her response, the applicant argued that she did not widen the scope of her FOI request after her initial request. She said she does not want information on any specific medical expert who gave evidence while under investigation for misleading the courts abroad, but rather to ascertain how often in the six years specified, medical experts under investigation for misleading the courts abroad have been paid to give evidence in Irish criminal courts. She stated her belief that there was at least one such instance and the purpose of her FOI request was to find out how many more, if any. She said as the Department plays a role in requests for sanction to engage the services of an expert and receiving and approving the invoice, it would be reasonable to assume that the Department might have information including whether a medical expert was registered and/or under any sanction and/or under investigation for misleading the courts abroad at the time. She said it would be as simple as the Department requesting from the DPP how often and when medical experts gave evidence in the Irish criminal courts whilst under investigation for misleading the courts abroad and cross referencing this with the financial records.
It seems to me that the applicant essentially accepts that the Department does not hold the information sought in the format sought but that she expects it to be in a position to source relevant information that would allow it to then categorise the information it holds for release to the applicant in the format sought.
As I have explained above, the Act does not generally require FOI bodies to create a record to respond to a request if the record sought does not exist. I accept the Department’s evidence that it does not hold any record which identifies, from the details of all medical experts who received payments during the period in question, those specific medical experts who received payments while known to be under investigation for misleading the court in another country. It seems to me that if it was to be in a position to provide the information sought, it would first have to obtain relevant information from other sources and then create a new record based on that information. The FOI Act does not require FOI bodies to take such steps. The Act is concerned with access to records that actually exist, as opposed to records a requester believes ought to exist. I am also satisfied that section 17(4) is not relevant in this case as the information in question is not held electronically.
The question I must consider is whether the Department has taken all reasonable steps to ascertain the whereabouts of records containing the information sought by the applicant. Having regard to the details of the Department’s submissions and to its explanation as to why no such records exist, I am satisfied that it has.
Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records containing details of annual expenditure through criminal legal aid to defence medical experts known to be under investigation for misleading the court in another country for the years 2012 to 2018, on the ground that no such records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access, under section 15(1)(a) of the Act, to details of annual expenditure to defence medical experts known to be under investigation for misleading the court in another country for the years 2012 to 2018, on the ground that no records containing the information sought exist.
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.