Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records of any correspondence between the Department and Cricket Ireland; Sport Ireland; the Dáil Committee on Transport, Tourism & Sports and the Department of Transport in relation to a €100,000 loan made in 2018 to Cricket Ireland 

23 June 2022

Background

In a request dated 24 November 2021, the applicant sought access to

• all correspondence the Department had with Cricket Ireland, Sport Ireland and the then Dail Committee on Transport, Tourism & Sport in relation to a loan of €100,000 given to Cricket Ireland by its CEO in 2018, to include details of the date the Department was first made aware of the loan by Cricket Ireland and Sport Ireland, and
• all correspondence the then Minister Transport, Tourism and Sport had with Cricket Ireland, Sport Ireland and the then Dail Committee on Transport, Tourism & Sport in relation to the loan, to include details of the date he was first made aware of same by Cricket Ireland and Sport Ireland.

In a decision dated 17 January 2022 the Department part-granted the request, refusing access to some information it considered to be commercially sensitive under section 36(1)(b) of the FOI Act. On 18 January 2022, the applicant sought an internal review of that decision. He said he was not seeking access to any redacted commercially sensitive information but was instead seeking correspondence with respect to the Dail Committee and also the former Minister.

On 31 January 2022, the Department affirmed its original decision on the basis that it holds no further records. It explained that responsibility for the sport function transferred to the Department in June 2020 from the then Department of Transport, Tourism and Sport (DTTAS). It said records created in the Office of the then Minister for Transport, Tourism and Sport were retained in the Department of Transport and that it does not have access to records of emails received or sent directly by staff of the DTTAS Minister's Office, other than those which might have been forwarded to the line divisions prior to the date of transfer.

It said that similarly, it does not hold records of correspondence received by or sent from the then Minister, other than those which might have been forwarded to the line divisions. It noted that the records released show that a request was received by the then Minister of State's Private Secretary from the then Clerk of the Joint Oireachtas Committee on Transport, Tourism and Sport on 26 April 2019 for a note on the loan provided by the CEO to Cricket Ireland, that the Sports Policy Division, being the relevant line division, requested a note on the matter from Sport Ireland on the same date, and that a note was received from Sport Ireland on 2 May 2019. It said the note received from Sport Ireland was forwarded to the then Minister of State's Office on 7 May 2019 and it enclosed a copy of that email. It said no further records were located. It suggested that the applicant may wish to contact the Department of Transport to see if they hold any records on the matter which were created by the then Minister or staff of his office and which were not circulated to a line division.

On 10 March 2022 the applicant applied to this Office for a review of the Department's decision. In his application to this Office, the applicant said he made a similar request to the Department of Transport and received a copy of the same records released by the 3 Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media. He argued that many more records should exist.

During the course of the review, the Investigating Officer provided the applicant with details of the Department's submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make a further submission on the matter. The applicant made further submissions to this Office.

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 correspondence referred to above and to the submissions made by both parties in this case. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant considers that further relevant records should exist. The Department's position is that it has taken all reasonable steps to locate the relevant records and that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant's request.

Since the applicant indicated in his request for an internal review that he did not require the redacted information contained within the records released to him, this review will not consider those redactions.

Preliminary Matters

In his application to this Office, the applicant said he was looking for all relevant records held by both the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media and the Department of Transport. He also said he had received no records of the Dail Committee's involvement in the matter. It is important to note that this review is concerned solely with the decision taken by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media on the applicant's request. If the applicant is unhappy with the decision of the Department of Transport on the separate request he made, it is open to him to apply for an internal review of that decision of he has not already done so.

I also note that the applicant said he had not been provided with details of when the Department and the then Minister were made aware of the loan. While the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to 4 questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Analysis and Findings

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. Our role 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 their 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.

As I have outlined above, the Department provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submission, the Department described its policies and guidelines for storing, filing, archiving, retention and destruction of the type of records sought by the applicant. It said that, according to Divisional Guidelines on storage of records, all records received within the Sports Policy and Campus Division are saved in electronic format on a share folder accessed by all staff in the Division. It said all records received related to Cricket are stored in an electronic folder entitled -�Cricket-� and accessible by all in the Division.

The Department said a search was carried out within individual mailboxes of relevant staff within the Department. It explained that a search was also carried out of the electronic folders and emails within the Sports Policy and Campus Division. This search included the main email address as well as the division's shared drive.

As outlined above the entirety of the search details were provided to the applicant by this Office. In response, the applicant argued that a similar loan made by the then CEO of the FAI resulted in a substantial investigation. He again suggested that the relevant Dail Committee should be consulted. As I have indicated above, this review is concerned solely with records held by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media and not by the Department of Transport or the relevant Dail Committee. Moreover, the matter of the 5 investigation of the loan given to the FAI is of no relevance to the question of what records the Department holds in relation to the loan given to Cricket Ireland.

The applicant also asked this Office to ensure that the Department states clearly that it has supplied him with every record it has in relation to the Cricket Ireland loan. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.

While the applicant believes further records ought to exist, he did not provide any further evidence which would suggest that additional searches might be warranted within the Department. In the circumstances, and having considered the details of the searches undertaken by the Department and of its explanation as to why no further records could be found, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for further relevant records apart from those already released 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 FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the Act, to any further records other than those already located and released on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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