Decision
Mr X & Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-165169-S1G8X0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-165169-S1G8X0
Published on
Whether the Department was justified in its decision, under section 15(1)(a) of the FOI Act, to refuse the applicant’s request for records on the grounds that no records were found after all reasonable steps were taken to search for their whereabouts
28 May 2026
The applicant in this matter is a former employee of the Department. On 23 September 2025, he sought access to records relating to his hospitalisation on 13 December 2023 following an incident on his way to work at the Department. The applicant’s request included the following:
• All HR records, case notes, absence records, occupational health referrals or reports referring to himself and/or the incident on 13 December 2023;
• All emails, memos, meeting minutes, notes, and other documents in which the incident, the nature of it or potential causes are discussed;
• Records of any formal or informal investigations, risk assessments, or reviews conducted by management/HR concerning the causes of the incident and/or measures to prevent recurrence;
• Records of any actions actually taken to prevent, or reduce the likelihood of, a recurrence; and
• Any records of communications with third parties about the incident.
The Department did not issue a decision on the matter within the requisite statutory timeframe. As a result, on 22 October 2025 the applicant sought an internal review of this deemed refusal. On 24 October 2025, the Department issued its decision wherein it refused the applicant’s original request under section 15(1)(a) of the FOI Act, on the grounds that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had been taken. The Department said that its HR Division was asked to search their records, including circulars and files held within the Department. It said that no documents or information was available regarding the request.
Following engagement with this Office, the Department then issued its internal review decision on 26 November 2025. The Department decided to affirm its original decision. It said that the above searches were carried out again, but nothing relevant to the applicant’s request was found. Additionally, the Department stated that the applicant’s former line manager was contacted to perform a search for any potential locally-held records which may fall within the parameters of the applicant’s request. The Department said that it was unable to locate any records which match the particulars of the request.
On 1 December 2025, the applicant applied to our Office for a review of the Department’s decision. In his application, the applicant stated that his request sought categories of records that the Department is legally obliged to create and maintain. The applicant stated that the absence of all relevant records is inconsistent with ordinary administrative practice. The applicant said that the records he requested were records the Department later relied on in decisions concerning his employment with it.
In a further submission to this Office dated 2 December 2025, the applicant said his absence on the day in question would have been immediately noted by his manager and that it would have required some form of communication or action. The applicant said that a record, such as a manager’s note or email acknowledging his absence, an attendance log or record showing that he had not signed in, a communication to or from HR regarding his sick leave and/or a record of the sick leave being entered into the Department’s system should exist. The applicant reiterated that the records he sought were used as a material factor in the Department’s decisions affecting his employment. The applicant stated that the records should exist as part of routine administrative processes and that there should also be records of Microsoft Teams exchanges about the incident.
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 above made by the applicant and the submissions made by the Department. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is solely concerned with whether the Department was justified in its decision, under section 15(1)(a), to refuse the applicant’s request on the basis that no relevant records could be found after all reasonable step to ascertain their whereabouts had been taken.
It is important to note that the role of this Office is not to determine what records should exist, to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s request for records.
Section 15(1)(a)
Section 15(1)(a) of the 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. The role of this Office 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 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 is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
Department’s submissions
In its submissions to this Office, the Department said that in an effort to locate information on the request, all teams within its HR Division were written to with the details of the request as submitted by the applicant and asked to undertake a search of their records to provide any information relevant to the request. The Department said that such searches included personal and shared mailboxes, local and shared drives, circulars and files held within the Department.
The Department further stated that the applicant’s former line manager was contacted to perform a search for any potential locally held records which may fall within the parameters of the request. It said that keyword searches in relation to the applicant’s name were carried out. The Department said that the searches yielded no results and no records were identified within the parameters of the request.
In addition, the Department said that the applicant submitted a separate FOI request (FOI 25/458) for records relating to how his absences have been classified on the relevant HR systems. As part of this request, the Department said it provided the applicant with a screenshot of his absence record from its HR Management System which is hosted by the National Shared Services Office (NSSO). It said that this records sick leave and other leave on the Department’s behalf, and the Department’s HR Division have viewing access to this. The Department said that the only record which it holds which could potentially be within the scope of the request in this current review is the screenshot of his sick leave record, which it said was already released to the applicant further to this separate request.
The Department stated that it does not create, maintain, or store records relating to incidents which occur when a staff member is not at work or on work time. It said, therefore, that there would be no requirement to create a file or records about the incident which occurred on 13 December 2023.
The Investigating Officer asked the Department if Microsoft Teams messages were considered in the search for records. In response, the Department said that the incident referenced in the request occurred in 2023 and this pre-dates the Department’s adoption and use of Microsoft Teams, which was widely implemented in the Department in 2025. The Department also stated that it would not be usual for a manager to create any other record of a staff member’s absence other than the entry on the NSSO system. The Department also said that the NSSO may hold further records, such as payroll records.
The Investigating Officer also asked the Department if any meeting, investigation, or discussion of the incident, the nature of it, or potential causes of it took place up to the date of the applicant’s request. The Department responded by saying that a single meeting took place following the incident. It said this meeting was held on 14 December 2023 between the applicant and his line managers. The Department said that an email record summarising this meeting was issued to the applicant on 3 November 2025 as ‘Record 5’ under another FOI request from him (FOI/25/368). The Department stated that no additional records were created in relation to this meeting, and no further meetings concerning the incident were identified.
The Department also stated that no investigation into the incident was carried out. It said that one internal email referring to the incident was identified. The Department said that this email was sent on 13 December 2023 at 12:05, in which the incident was mentioned. The Department said this was also released to the applicant in connection with a further subsequent FOI request from the applicant (FOI/25/439). It stated that no other records were located which refer to the incident, its nature or potential causes, or the applicant’s absence, up to the date of the request.
The applicant was provided with an update from this Office containing a summary of the Department’s position as outlined above and was provided with an opportunity to make further submissions or comments of his own in response. The applicant has so far declined to do so.
My Analysis
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, or are known to have existed in the past, have not been located. 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 or did exist.
The question I must consider, therefore, is whether the Department has taken all reasonable steps to ascertain the whereabouts of the specific records sought.
The Department’s position is that having carried out searches, no records, which have not already been released to the applicant, within the scope of the request exist or can be found.
Having carefully considered the Department’s submissions in this matter, I am satisfied that it has provided a sufficiently detailed and cogent explanation as to why no records exist. While I acknowledge the applicant’s arguments in his application and submissions that relevant records ought to exist, in the absence of any evidence to suggest that further searches are warranted in this case, I am satisfied that the Department has carried out all reasonable steps to search for and provide the relevant records which are within the scope of the applicant’s request.
Accordingly, I find that the Department was justified in refusing access to records within the scope of the request under section 15(1)(a) of the Act on the basis that the records do not exist or cannot 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’s decision to refuse access to records relevant to the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records do not exist or could not be found after it had taken all reasonable steps to ascertain their whereabouts.
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.
Mary Connery
Investigator