Decision
Ms. X & The Department of Agriculture, Food and the Marine (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-160138-T1J4Q2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-160138-T1J4Q2
Published on
Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to a land rental contract witnessed by the applicant, on the ground that it does not hold the record
22 October 2025
On 25 January 2025, the applicant submitted a request to the Department for the following:
“1. The Department's policy in relation to the retention of personal and non data, and the timeline for the retention/non retention of same, (agricultural grants section and any other section that processes these records).
Up to what year are records retained? Please specify as to what extent this information is shared (and when), with the FOI applicant, from the commencement to the end of the processing of the FOI application? This part of the request is in relation to generally, and also specifically, to the 2024 period of this request.
2. All information pertaining to the contract that I signed in relation to the rental of the land, [specified folio numbers] in 2024. I signed one contract and only as a witness. The FOI Act indicates that I can have access to personal records created after 1995. Therefore any document that I signed in (2024 in this case), is relevant to the application. Please do not include any correspondence in relation to the ongoing FOI application on a separate matter.”
On 28 January 2025, the Department emailed the applicant to ask for clarification regarding her request. On 29 January 2025, the applicant responded to the Department, providing additional information regarding her request. The Department did not issue an original decision within the timeframe set out in the Act, and as such on 25 February 2025, the applicant applied for an internal review on the basis of a deemed refusal. She stated “My query was in relation to ONE signed document from 2024 only. Yet still the Department of Agriculture has not to date actioned the FOI request .”
On 23 April 2025, the applicant applied to this Office for a review on the basis of a deemed refusal of her request. The applicant stated that the Department had not issued an original or internal review decision in relation to her request. On 27 May 2025, the Department wrote to the applicant and refused her request under section 15(1)(a) of the Act, on the basis that the record sought does not exist or cannot be found. On 27 June 2025, the applicant applied to this Office for a review of the Department’s decision. The applicant said that records from 2024, such as the 2024 land rental contract she is requesting, are within the Department’s retention timeframe for retaining essential documents for business purposes.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions wherein it outlined the searches undertaken to locate the record sought and its reasons for concluding that it does not hold the record. The Investigating Officer invited the applicant to make submissions 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 the correspondence outlined above and to the submissions made by both the Department and the applicant during the course of this review. 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, under section 15(1)(a) of the FOI Act, in refusing access to a copy of the rental contract signed by the applicant in 2024 in relation to the specified land folio numbers on the basis that it does not have the record sought by the applicant.
In her submissions to this Office the applicant made various comments about ownership of the land in question, payments made by the Department in relation to the land and also disputes the Department’s position that it does not routinely require a copy of the lease agreement to support a claim. It is important to note here that this Office has no role in examining how the Department carries out its functions generally or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. My role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their 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.
In its submissions to this Office, the Department stated that it does not hold the record the applicant is requesting. The Department began by stating that the applicant is not a customer of the Department, and the only information she provided in relation to the record which she has requested was two folio numbers. The Department stated that folio numbers are not routinely used by the Department of Agriculture, Food and the Marine as it uses Land Parcel Identification System (LPIS) numbers linked to its LPIS mapping system. Nevertheless, the Department stated that in order to facilitate searches for records falling within the scope of the applicant’s request it asked its mapping contractors to map the folio numbers which the applicant had provided in her request to its Land Parcel Identification System. Following this, the Department stated that further investigation was carried out on its Basic Income Support for Sustainability (BISS) IT system. The Department stated that having carried out these searches, it confirmed that it does not hold the record which the applicant has requested i.e. a land rental contract the applicant states she witnessed in 2024.
Additionally, in support of its position that it does not hold the record sought by the applicant, the Department stated that the applicant’s request relates to the 2024 scheme year which is a fully online application process, and as such the Department stated that, if the Department held the record the applicant requested, it could only exist on the BISS IT system. The Department stated that this system was checked, and no record falling within the scope of the applicant’s request was found. Furthermore, the Department stated that further checks with the Land Registry confirmed that the applicant is not the registered landowner for the folio numbers which she provided in her FOI request. As such, it stated that as the applicant is not the registered landowner for the folios she has specified in her request, in accordance with General Data Protection Regulations, it is not in a position to provide any further information to her in relation to the land she has identified in her request, except to say that it does not hold a copy of the record she has requested.
The Department stated that, even in circumstances where folios are leased, a copy of the lease is not necessarily provided to the Department by the claimant. It stated that it is not unusual for a copy of a lease not to be provided, and it is not a requirement to provide one unless a claimant is the subject of an administrative check or inspection. Therefore, the Department stated records of a lease are not always held by the Department, even where lands are leased.
In summary, the Department stated in its submissions to this Office that it has carried out detailed searches in all areas of the Department which would be expected to hold the record which the applicant has requested. Having done so, it stated that it has not been able to locate the record the applicant has requested, and therefore its position is that the request falls to be refused under section 15(1)(a) of the FOI Act, on the basis that the record cannot be found or does not exist.
In relation to its retention policy, the Department stated that its retention policy in relation to the BISS and other area-based schemes is outlined in the scheme terms and conditions. The Department stated that this policy is available online on the Department website, a link to which was provided to the applicant.
In her submissions to this Office, the applicant made a number of points regarding the Department’s record retention policies, in particular she noted the fact that the Department had previously provided her with information in relation to claims which were made and claims which were not made during the time period from circa 2015-2019. The applicant stated to this Office that if the Department were able to comment on whether claims were made dating back several years, then it should clearly have retained records from 2024.
Additionally, the applicant stated that it was her understanding that proof of rental contracts is required for agricultural grant claims, and that it is a procedural requirement for proof of contract to be provided to the Department. As outlined above, in its submissions to this Office the Department stated even in circumstances where folios are leased, a copy of the lease is not necessarily provided to the Department by the claimant. It stated that it is not unusual for a copy of a lease not to be provided, and it is not a requirement to provide one unless a claimant is the subject of an administrative check or inspection. Therefore, the Department stated records of a lease are not always held by the Department, even where lands are leased.
The applicant also stated that a named Department staff member, who is no longer employed with the Department, was able to confirm as late as 2019 the fact that there was no claim on the land the applicant has specified during the years 2017, 2018, and 2019. The applicant pointed to the fact that the Department had been able to confirm this fact without a land parcel number, and as such she queried why this Office was willing to accept that the Department require a land parcel number in order to check claims and seemingly cannot do so without the same. It is important to note that the Department did not state that it is unable to check claims without a land parcel number, and this was communicated to the applicant in the update letter provided. The Department stated that folio numbers are not routinely used by the Department as it uses Land Parcel Identification System (LPIS) numbers linked to its LPIS mapping system. It stated that in order to facilitate searches for records falling within the scope of the applicant’s request it asked its mapping contractors to map the folio numbers the applicant had provided in her request to its Land Parcel Identification System, which allowed for searches to be carried out. As such, the Department’s position that it does not routinely use folio numbers, but instead uses land parcel numbers, does not mean that it was not able to conduct searches for records relevant to the applicant’s request. Rather, based on the submissions provided by the Department, it would appear that only being provided with the folio numbers simply meant that the Department were required to take an additional step to map the folio numbers to its Land Parcel Identification System before it could carry out searches for the record requested.
The applicant also raised issue with the Department’s position regarding the fact that as she is not the registered owner of the land, it cannot provide any additional details regarding the land to her. The applicant stated that the registered owner of the land is deceased, yet the Department has paid out on land rental contracts signed by her sister since 2012, with the knowledge that she is not the registered owner of the land. As such, the applicant stated that it was total hypocrisy that the Department is in agreement to pay out contracts, including the contract the applicant states she witnessed, yet it has decided to refuse information to her on the grounds that she is not the registered owner of the land. It is worth noting that this Office has no remit to investigate the way in which the Department previously or currently provided information to the applicant regarding the land in question, nor its decisions regarding what data is considered privileged under GDPR legislation, except insofar as such an act related to a refusal of records under the FOI Act. That is not the case here. In this case, whilst the Department have stated that it is not in a position to provide the applicant with any further details regarding the land as she is not the registered owner, it is important to distinguish that the Department is not refusing the applicant’s request on these grounds. As stated in the update letter provided, the Department has refused the applicant’s request on the ground that it does not hold the record she is seeking, and it has provided submissions in support of that position.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that are known to have existed cannot be found. 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 or might exist.
Having regard to,
• the Department’s description of the searches it said it has undertaken,
• its explanation of its records management practices in respect of the type of records sought by the applicant,
• its reasons for concluding that it does not hold the record, and
• the absence of any evidence to suggest that further relevant searches might be warranted,
I am satisfied that the Department has taken all reasonable steps to locate the record sought by the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to the land rental contract sought by the applicant 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.
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Richard Crowley
Investigator