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Case Number: 160165

Whether the Department was justified in refusing access to additional records relating to the applicant's protected disclosure on the ground that no further records exist

 

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

On 2 February 2016, the applicant made a request to the Department under the FOI Act for a copy of all documentation relating to a submission that he made to the former Minister, Mr Alan Kelly, under the Protected Disclosure Act 2014, and associated correspondence sent by him to the Minister.

In its decision, dated 2 March 2016, the Department granted access to a number of records relating to the applicant's protected disclosure and associated correspondence including letters, notes, and emails. The applicant sought an internal review on 11 March 2016, as he was of the view that not all documentation had been released by the Department. On 5 April 2016, the Department issued an internal review decision refusing access to additional records on the basis that no further records exist. The applicant sought a review by this Office of the Department's decision by letter dated 11 April 2016.

During the course of this review the Department provided this Office with details of the searches undertaken to locate records relating to the applicant's protected disclosure and associated correspondence. Ms Lydia Buckley of this Office contacted the applicant and provided him with details of these searches. She also informed the applicant of her view that the Department was justified in deciding that no further relevant records exist, having taken all reasonable steps to locate them. As the applicant indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Department.

 

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant access to additional records relating to his protected disclosure and associated correspondence on the ground that no further records exist.

 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in such cases 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. 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 FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

In response to a request from this Office, the Department provided information about the record management practices pertaining to the records sought by the applicant. It also provided details of the searches undertaken to locate records relating to the applicant's protected disclosure and associated correspondence. As outlined above, Ms Buckley of this Office has already provided the applicant with the details of these searches. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purpose of this review. In summary, the Department stated that all personnel who had handled or reviewed the applicant's protected disclosure had searched their files for relevant records. The Department noted that electronic and harcopy files, as well as relevant email accounts, were examined during this process. The Department also stated that Department's "E-reps" system was searched for relevant correspondence and the minutes of the Management Advisory Committee (MAC), were examined for references to the applicant's protected disclosure and related correspondence.

During the course of this review the applicant noted that he had expected to received further correspondence in relation to a letter sent by him to the Minister on 1 December 2015. In this letter, the applicant expressed concern that the purpose of his submission and related correspondence may have been unclear, and he clarified his intention by formally requesting that the Minister conduct an investigation under the Protected Disclosure Act 2014. While a letter of acknowledgment was sent by the Minister's private secretary on 7 December 2015, no further correspondence was received by the applicant in relation to the letter dated 1 December 2015. In a submission to this Office, the Department stated that the reason that there was no follow-up correspondence in relation to the letter was that it was mistakenly forwarded by the Minister's Office to the incorrect section within the Department. The letter should have been sent to the Local Government Oversight and Governance Section, which had the responsibility of reviewing the applicant's protected disclosure, and was forwarded to the Forward Planning Section instead. As the content of the applicant's protected disclosure was not relevant to the Forward Planning Section, no follow-up action was taken by the section and no correspondence was created or issued by it. The Department stated that it became aware of this error on 22 January 2016, and the letter was then forwarded to the correct section.

Having considered the searches conducted by the Department to locate records relating to the applicant's protected disclosure and related correspondence, and the above explanation as to why no follow-up correspondence exists in relation to the letter dated 1 December 2015, I am satisfied that all reasonable steps have been taken to locate the records sought by the applicant. I find, therefore, that the Department was justified in its decision on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department.

 

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty