Whether the Department was justified in its decision to refuse the applicant-�s request for access to further records under section 15(1)(a) of the FOI Act

2 July 2018 

Background

On 29 November 2017, the Department received a request from the applicant for copies of all letters, emails, memos and briefing documents which make reference to him or correspondence generated by him between the Chairman, Members of the Board, and Members of the Executive of the Irish Greyhound Board (the IGB) and the Department from the period 1 July 2013 to 1 November 2017.

On 28 December 2017, the Department issued a decision in which it released eight records. On 19 January 2018, the applicant sought an internal review of that decision. He suggested that there were additional records not received on the basis that the records released refer to further records not released. The Department issued its internal review decision on 5 February 2018 in which it granted access to two further records. On 28 February 2018, the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, the Department provided this Office with the details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed the applicant of her view that the Department was justified in refusing access to additional records on the ground that no further relevant records exist or could be found.  The applicant provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.  

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.  I have also had regard to the contents of the records that have been released to the applicant in response to his request.

Scope of Review

During the course of this review the applicant provided this Office with further details regarding particular records sought. Ms Swanwick outlined to the applicant that the scope of this review is confined to records coming within the scope of his original request and excludes records that have already been released.

This review is concerned solely with whether the Department was justified in refusing access to further relevant records coming within the scope of the applicant-�s request.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified.  This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In submissions to this Office, the Department provided details of the searches conducted to locate the records sought by the applicant and the record storage practices within the Horse and Greyhound Racing Division (the Division). As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.

In short, the Department stated that searches were carried out by name, key words, and dates. It stated that all relevant locations were searched, including the Division-�s electronic shared area on the Department-�s server, the group email address to which the Division copies all relevant documents, the applicant-�s general electronic file, and the applicant-�s hard copy file. It stated that no records relating to the applicant had been destroyed. It also outlined that all relevant individuals were consulted and their records searched, including a key staff member of the Division who confirmed that he held no further documents in relation to the applicant.

In his submission of 8 March 2018 to this Office, the applicant provided examples of three records he believed to have been withheld, based on references to such records in the records released. In response, the Department explained that the first example comprised a record that was outside the scope of the request as it was not correspondence between the IGB and the Department, and that the other two examples had actually been included as part of records 4 and 5 that were released.

The applicant subsequently argued that he had not received copies of electronic correspondence between the IGB and the Department for 6 June 2014, a letter dated 19 June 2014, or copies of records of Board minutes issued by the IGB to the Department. In response, the Department stated that no such correspondence for the dates mentioned could be found, having carried out additional searches, similar to those previously carried out. It also stated that is is not in receipt of IGB Board minutes.

Having considered the Department-�s description of the searches undertaken, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. I find, therefore, that the Department was justified in refusing access to any additional records on the ground that no further relevant 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 FOI Act, I hereby affirm the decision of the Department to refuse access to further records coming within the scope of the applicant-�s request under section 15(1)(a) of the FOI Act.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator