Whether the Department was justified in its decision to refuse access to information sought by the applicant under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found

05/07/2018

Background

In light of my findings that follow, it is worth citing in full the precise wording of the request that the applicant submitted to the Department on 17 November 2017. His request was for the following:
" 1. A copy of all relevant documentation of compensation claims paid to staff or client/customers of the Department of Employment Affairs and Social Protection ( or this Department under its precious [sic] names) that had confidential post sent to the incorrect postal address or email address during the last 5 years
2. A copy of all documentation and emails of any complaints, grievances submitted or action/sanction taken regarding staff acting in the capacity of Designated Offices on behalf of HR. Specifically any breaches of the integrity and confidentiality by all the officers involved in that role of Designated Officers
3. A copy of all documentation and emails of any complaints, grievances submitted or action/sanction taken in relation to breaches of the integrity of the interview process by staff on the interview panels, internal and external to DEASP involved in interviewing staff for the position of AP in the last 10 years. "
The Department did not issue a decision within the time frame set out in the FOI Act. On 15 March 2018, the applicant sought a review by this Office of the deemed refusal of his request as the timeframe within which an internal review decision should have issued had also passed. Subsequent to this, on 22 March 2018, the Department issued a late internal review decision in which it stated that it had decided to part grant the request. It refused access to records coming within the scope of Parts 1 and 3 of the request under section 15 (1)(a) on the ground that no relevant records could be found or exist. It granted access to four records and refused access to 15 records that it had located relating to Part 2 under sections 29, 30 and 37 of the FOI Act.
On 23 April 2018, Ms Hannon of this Office contacted the applicant by telephone to discuss a number of the applicant's applications for review, including this one. During that conversation, the applicant indicated that this review could be confined to the Department's refusal to release any records in connection with Parts 1 and 3 of his request.

During the course of the review, and following correspondence between this Office and the Department, an issue arose as to whether or not a record subsequently identified by the Department came within the scope of Part 1 of the request. Following a consideration of the matter by this Office, Ms Hannon wrote to the applicant on 8 June 2018, in which she informed the applicant of her view that Part 1 of the request was not a valid request. She also provided the applicant with details of the searches the Department had undertaken to locate relevant records coming within the scope of Part 3 and informed the applicant of her view that the Department was justified in deciding that no relevant records exist or could be found in relation to Part 3. She invited the applicant to make a further submission in support of his application. While further exchanges of correspondence followed relating to Part 1, which I will address in more detail below, the applicant made no further submissions in respect of Part 3 of his request.
I have decided 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. I have also had regard to the communications between this Office and both the applicant and the Department on the matter. 

Scope of the Review

This review is concerned solely with whether the Department was justified, under section 15 (1)(a) of the FOI Act to refuse access to records relating to Part 1 and Part 3 of the applicant's request on the grounds that no relevant records exist or can be found.

Analysis and Findings

Part 1 of the request
As I have outlined above, an issue arose during the review as to whether or not a record subsequently identified by the Department came within the scope of Part 1 of the request. The Department argued that it did not. The matter was brought to my attention and I took the view that the wording of Part 1 of the request was such that the nature of the records sought was unclear, and I considered that the request, as worded, was not valid. I informed Ms Hannon of my view on the matter, following which she contacted the applicant by telephone on 7 June 2018 to explain our views on the matter. She also wrote to the applicant on 8 June 2018 to outline those views. This resulted in a number of exchanges of correspondence between this Office and the applicant.
Having carefully considered the matter, I am satisfied that Part 1 of the applicant's request is not a valid request. Under section 12 of the Act, a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. In my view, Part 1 is not sufficiently clear to allow the Department to identify the records sought by the taking of reasonable steps. Indeed, it seems to me that this is why the Department could not state, with any reasonable degree of certainty, whether the record it subsequently located came with the scope of Part 1.

Firstly, I find the request as worded to be ambiguous. It could be interpreted as capturing all claims paid, regardless of the basis for the claim, where confidential post was sent to an incorrect address. On the other hand, it could also be interpreted as capturing all claims paid where the basis for the claim was directly as a result of confidential post having been sent to the wrong address. Secondly, the exact nature and extent of the records sought is unclear. The request was for a copy of "all relevant documentation". It is possible that a substantial amount of records could potentially exist in relation to individual claims paid. Such records, if they exist, would invariably contain significant amounts of personal information relating to the claimants. The applicant has not identified what records are sought or what is meant by "relevant documentation". I find therefore, that Part 1 of the applicant's request is not a valid request as it does not contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps.

It is unfortunate that the Department did not attempt to clarify the request with the applicant. Under section 11(2) of the Act, public bodies are required to give reasonable assistance to a person who is seeking access to a record under the Act in relation to the making of the request. However, it instead processed the request based on its understanding of what it believed the applicant was seeking. I have considered whether to annul the Department's refusal of Part 1 and to remit it back to the Department for processing afresh. However, in doing so, the ambiguity surrounding the scope of the request would remain to be clarified. I have decided that, on balance, the most appropriate course of action is to discontinue my review in relation to Part 1 under section 22(9)(a)(ii) on the ground that the application for review in respect of Part 1 does not relate to a decision that I can review as no valid request was made in the first instance. It is, of course, open to the applicant to submit a fresh request that complies with the provisions of section 12 of the Act and I expect the Department to offer reasonable assistance to the applicant, if necessary, in the event that he chooses to do so.

Part 3 of the request
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 role of this Office in cases 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
As I have outlined above, Ms Hannon wrote to the applicant on 8 June 2018, wherein she provided the applicant with details of the searches the Department had undertaken to locate relevant records coming within the scope of Part 1 of the request and informed the applicant of her view that the Department was justified in deciding that no relevant records exist or could be found in relation to Part 3. While I do no propose to repeat these details in full here, I confirm that I have had regard to them for the purposes of this review. The applicant made no further submissions in respect of Part 3 of his request.
In summary, the Department stated that both manual and electronic searches were undertaken. All relevant individuals were consulted and their records searched. The HR Division confirmed it has no records relating to Part 3 of the applicant's FOI request. It stated that if a complaint or grievance of the type identified were made,the HR Division would have created a file on the matter. The relevant areas of the Division where such files would be kept was searched and none were found, including the archive storage area. The Department stated all relevant locations were searched by a number of staff members and no relevant records were located.
 
Having regard to the explanation provided by the Department and searches undertaken, I find that it was justified in its decision to refuse Part 3 of the applicant's request under section 15 (1)(a) of the FOI Act on the ground that no records containing the information sought exists or can be found.

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 records relating to Part 3 of the applicant's FOI request under section 15 (1)(a) of the FOI Act on the ground that no relevant records exist or can be found.

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