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Whether the Board was justified in its decision to refuse access to further records relating to the applicant under section 10(1)(a) of the FOI Act, on the basis that no further relevant records exist or can be found

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant was a trainee at the Family Mediation Service (FMS), which is part of the Legal Aid Board, as part of a course run by NUI Maynooth. In a request dated 21 July 2014, the applicant sought access to all correspondence relating to her held by the Board. On 19 August 2014, the Board decided to grant the request. On 21 August 2014, the applicant informed the Board that certain information was missing, following which two further records were released.

On 9 September 2014 the applicant sought an internal review of the Board's decision and on 20 October 2014 the Board released further records relating to her request and stated that all relevant records had now been released. On 8 January 2015 the applicant applied to this Office for a review of the Board's decision.

I note that Ms Sandra Murdiff, Investigating Officer, contacted the applicant by email on 23 April 2015 and outlined her view that the Board's refusal to grant access to further records relating to her request was justified. Ms Murdiff invited the applicant to make further comments if she disagreed with that view. As the applicant remains of the view that further records exist, I have decided to conclude this review by way of a formal binding decision. In conducting this review I have had regard to the Board's decisions on the matter and its communications with this Office, and to the applicant's communications with this Office and the Board.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of this review is solely concerned with whether or not the Board was justified, under section 10(1)(a) of the FOI Act, in deciding to refuse access to further records relating to the applicant's request on the basis that no further relevant records exist or can be found.

Preliminary Matters

It is important to note that the applicant's request is for records held by the Board that relate to her and the Commissioner's review is concerned only with the matter of access to such records. The Commissioner's remit does not extend to examining the actions of the Board in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act.

Furthermore, section 8(4) of the FOI Act expressly provides that decision makers should, subject to the provisions of the Act, disregard any reasons that the requester has for making a request.

Analysis and Findings

Section 10(1)(a) of the FOI Act provides that a public body may refuse access if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the public 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.  The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.  The Commissioner's understanding of his role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v Information Commissioner [2002] No. 18 MCA, available on the website of this Office at www.oic.ie.

In submissions to this Office, the Board provided details of its records management policy and procedures and the steps taken to locate the records in question. It outlined the searches which took place, including searches of the personal email accounts of a number of Board staff members. It also gave details of electronic and manual searches undertaken in the offices of the FMS. In essence, the Board's position is that all records relating to the applicant's request that exist or can be located have been released to her. I note that Ms Murdiff provided the applicant with details of those searches. Therefore, while I do not propose to repeat those details here, I have had regard to them, for the purposes of this review.

Although the applicant contends that further records exist which have not been released to her, she has not been able to provide evidence that the relevant records should, in fact, exist. I note that the applicant has made certain contentions about the record keeping practices of the Board, and has alleged that the she was instructed to maintain "private" files during her traineeship by her supervisor, and is of the view that such files relating to her are likely to have been kept by the Board.

In response, the Board stated that it wished to "categorically deny" the applicant's contention. It stated that it does not maintain such "private" or "secret" files, either in relation to the applicant or in general. The Board went on to state that that the applicant's supervisor highlighted to her the distinction between FMS case files and any other records the applicant was obliged to create/maintain as part of her NUI training. It stated that the supervisor highlighted how important it was that no FMS client should be identifiable in any of the learning logs, session records or case studies that she would be required to complete as part of her course, in which reflective analysis of casework is crucial. The Board suggested that a misunderstanding may have arisen as a result.

Given the Board's responses to this Office's queries concerning its record keeping practices and the searches undertaken to locate the records sought, I am satisfied that the Board has taken all reasonable steps to locate all relevant records and I find that it was justified in deciding that no further relevant records exist or can be found.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Board's decision to refuse access to further records in accordance with section 10(1)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator