Decision
Mr X and The Irish Prison Service
From Office of the Information Commissioner (OIC)
Case number: OIC-151285-L2S2Q7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151285-L2S2Q7
Published on
Whether the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the applicant held by the Psychology Service of the IPS
27 June 2025
In a request dated 03 June 2024, the applicant sought access to all records concerning him held by the Psychology Service of the IPS. As the IPS failed to issue a decision within the statutory timeframe, the applicant applied for an internal review of the deemed refusal of his request on 10 July 2024. In its internal review decision dated 1 August 2024, the IPS part-granted the request with certain records and information withheld under sections 35(1)(b) and 37(1) of the FOI Act. On 10 August 2024, the applicant applied to this Office for a review of the IPS decision.
During the course of the review, the IPS released records to the applicant that were previously withheld in full. Subsequently, the applicant indicated that he was not disputing the remaining redactions and the small amount of outstanding information. He agreed to confine this review to his contention that he had not received all relevant records from the IPS and the adequacy of the searches undertaken for records. The Investigator duly sought details from the IPS on its search for records. The details of the IPS submission were provided to the applicant who was invited to make a submission in response. No further submissions from the applicant were received.
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 submissions from the IPS and the applicant. I have decided to conclude this review by way of a formal, binding decision.
As I have outlined above, the applicant agreed to confine this review to his contention that he had not received all relevant records from the IPS and the adequacy of the IPS’s search for records. In this regard, the applicant confined the scope to records of discussions with the Psychology Service concerning his participation in a certain prison programme and correspondence concerning him between the IPS’s Psychology Service, the Operations Directorate, Mr A, and Ms B. Within this scope, the applicant specified that the IPS’s search should include the following six categories of records:
1. Records dated between 13 May 2023 and 23 October 2023 concerning requests for meetings and details of engagement by the applicant with psychology services that occurred with Psychology Service personnel, Ms B or Mr A;
2. Records dated between 13 May 2023 and 23 October 2023 of requests to Dr X from the IPS, Ms B, or Mr A for details of the applicant’s engagement with psychology services to include his participation in the prison programme;
3. Records dated between 13 May 2023 and 07 July 2023 of requests to Dr X from the IPS, the Psychology Service, Ms B, and Mr A to assess the applicant for psychology services to include his participation in the prison programme;
4. The dates of entry on an Engagement with Services tab for entries which concerned the applicant’s assessment for suitability for the prison programme and him declining to participate in the programme;
5. The date that Ms B forwarded her recommendation to the IPS, the Operations Directorate, or Mr A that the applicant declined to participate in the prison programme;
6. The dates, content, outcomes, persons present of discussions held with the Psychology Services which the applicant claimed he never received in his request for all records concerning him held by the Psychology Service.
The position of the IPS is that no further relevant records exist or can be found. This is, in effect, a refusal to grant access to any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is solely concerned with whether the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to the applicant’s request for the above records.
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. Our 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 his/her decision and 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 records management practices of the FOI body, insofar as those practices relate to the records in question.
I should also explain at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information sought from a public 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 FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
In his application to this Office, the applicant asserted that he had not received all relevant records concerning him held by the Psychology Service. In subsequent submissions, he provided further reasoning to support this belief which he said was based on the drip feed of, and contradictory, information coming from the Psychology Service.
Firstly, the applicant claimed that Mr A and Ms B wrote in a Prison Information Management System document concerning him that he had declined to participate in a certain prison programme – a conclusion which the applicant claims was outside their professional remit. The applicant therefore claims that this conclusion about his engagement with therapeutic services must have been made in communication with the Psychology Service. The applicant said he was informed that the only communication between the Psychology Service and the IPS was an entry on an Engagement with Services (EWS) tab which stated that the applicant declined to participate in the prison programme. However, according to the applicant, it was recorded on this EWS tab that the applicant declining the programme reflected “the nature and outcome of discussions held with the IPS Psychology Service”.
Secondly, the applicant also alleged that there was completely contradictory information coming from the Psychology Service about his engagement with the prison programme. The applicant claimed that the prison programme in question is completely voluntary and that he was unsuitable to participate. However, the applicant alleged that an employee of the Psychology Service insisted that he declined to participate in the programme to his detriment. The applicant also asserted that he was informed by the IPS that Dr X had assessed him as suitable to participate in the prison programme, but that this was contradicted by a document recently released to him via FOI by the IPS which said that a letter could be provided stating that he was unsuitable to participate in the programme.
The IPS provided a description of the searches undertaken to locate relevant records. It said all psychology records relating to a prisoner are contained in the Psychology Case Tracking System (PCTS) on the prisoner’s individual prison file. It described the PCTS as a bespoke database used by the IPS to record prisoner psychology records. It wrote that all psychology records are held on the PCTS and are not held elsewhere. It stated that the Psychology Service does not use physical files since the introduction of the PCTS in 2016. It said each prisoner is allocated a prisoner number when they are first committed to prison. It said that the prisoner number is the unique identifier for each prisoner and all prisoner records are associated with that number. It said all psychology records are searchable electronically using the prisoner’s name and number. It said that a full search of the PCTS was carried out by the Decision Maker. Its position is that all relevant records have been considered under this FOI request.
In terms of records management practices, the IPS said prisoner files are a class of records that warrant permanent preservation as archives. It said that these files will be transferred to the National Archives and must be retained.
The IPS also provided answers in response to the six categories of records within the scope specified by the applicant. Its position on these records, which primarily revolves around the manner in which the Psychology Services communicates information to prison management using the EWS tab, was further clarified in communications with the Investigator.
Category 1 concerned records of requests for meetings about and for details of the applicant’s engagement with psychology services that occurred with Psychology Service personnel, Ms B or Mr A. The IPS’s position is that no relevant records exist. It said that no records exist as there are no notes, correspondence, communications, etc. between the Psychology Service, Ms B, and Mr A. With respect to its internal systems of communication, it said that the Psychology Service uses the EWS tab in the PCTS to communicate non-clinical information to the Operations Directorate and Prison Management for decision making purposes. It said that there is no engagement between the Psychology Services and the hierarchy of the IPS other than through the EWS tab. It reiterated that all psychology records are held on the PCTS and that all such records have already been identified and considered for release under this FOI request.
Category 2 concerned records of requests to Dr X from the IPS, Ms B, or Mr A for details of the applicant’s engagement with psychology services to include his participation in the prison programme. The IPS’s position is that these records never existed. It emphasised that the Psychology Service uses the EWS tab for the communication of non-clinical information for decision making purposes.
Category 3 related to records of requests to Dr X from the IPS, Psychology Services, Ms B, and Mr A to assess the applicant for psychology services to include his participation in the prison programme. The IPS said all relevant records with respect to this aspect of the applicant’s request have already been provided. It said all prisoners convicted of certain offences are automatically referred for screening for this prison programme. It also said that a copy of this invitation to participate in this prison programme and the associated screening case notes have already been released to the applicant under this FOI request.
Category 4 is in relation to the dates of entry on an EWS tab for entries concerning the applicant’s assessment for suitability for the prison programme and him declining to participate in the programme. The IPS’s position is that no relevant records exist. It said that this constituted a request for information, not a valid request for records under section 11(1) of the FOI Act, and that, therefore, no such records exist. The IPS also said this information could be found in a copy of this EWS tab which was previously provided to the applicant as part of a series of documents released under a Subject Access Request (SAR). The IPS provided a copy of this record to the Investigator for verification purposes.
Category 5 concerned the date that Ms B forwarded her recommendation to the IPS, the Operations Directorate, or Mr A that the applicant declined to participate in the prison programme. The IPS’s position is that these records never existed. It said that this constituted a request for information, not a valid request for records under section 11(1) of the FOI Act, and that, therefore, no such records exist. It also referred to other records released to the applicant during this FOI request wherein it claimed that the applicant had declined to participate in the programme. It also reiterated that the Psychology Service uses the EWS tab to communicate non-clinical information for decision making purposes.
Category 6 related to the dates, content, outcomes, persons present of discussions held with Psychology Services which the applicant claimed he never received in his request for all records concerning him held by the Psychology Service. The IPS’s position is that all relevant records have already been provided to the applicant. It said that all psychology records are held on the PCTS and that all such records have already been identified and considered for release under this FOI request.
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 an applicant believes ought to exist have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the existence of certain records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
The applicant has asserted that further records relevant to his request ought to exist and appears to be implying that there must be other records of communication between the IPS and the Psychology Service about him and his engagement with psychology services and the prison programme. In its submissions, the IPS repeatedly emphasised that the further communications of the nature sought by the applicant do not exist. It emphasised that the only communication between prison management and Psychology Services occurs through the EWS tab which is used as a means for communicating non-clinical information for decision making purposes. Categories 1 – 3 of the records specified by the applicant relate to records of communications featuring various individuals in the IPS about the applicant’s engagement with psychology services or his participation in the prison programme. However, I am satisfied that the IPS has provided a sufficient explanation as to how its internal systems of communication operate to justify its position that no further records of the type sought in Categories 1 – 3 exist.
I also note that the IPS has provided a description of the steps it took to locate relevant records sought by the applicant. I am satisfied with the IPS’s explanation that all psychology records about prisoners are held on the PCTS and that it has provided a description of the reasonable steps taken by the Decision Maker to locate relevant records. I believe it has provided an appropriate description of the steps taken sufficient to justify its overall position that no further records exist. In so doing, in my view, it has also provided a satisfactory response to Category 6 of the applicant’s request, wherein he requested information which he claims he did not receive.
In its submissions, the IPS said that Categories 4 and 6 of the applicant’s request constituted requests for information, were not a valid request for records under section 11(1) of the FOI Act, and that therefore no records exist. Category 4 dealt with the dates of entry for two entries in an EWS tab, while Category 5 concerned the date of and a copy of a communication from Ms B. The IPS noted that the information sought by the applicant in relation to Category 4 and Category 5 could be found, respectively, in records released to him in this FOI request and in a previous SAR. Having examined a copy of the record previously released to the applicant under the SAR, I am satisfied that it contains the relevant information relating to Category 4 of his request. Furthermore, I believe that the IPS’s repeated emphasis that the only communication between the Psychology Service and prison management is via the EWS tab is sufficient to justify its position that no communications of the type sought by the applicant under Category 5 exist.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the IPS has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist. Accordingly, I find that the IPS was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such 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 IPS’s decision. I find that the IPS was justified in refusing the applicant’s request 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator