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Whether the Department was justified in its decision that the records sought by the applicant relating to an inspection of his premises do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Mr T and the Department of Agriculture, Food, and the Marine (the Department).

Background
The applicant submitted an FOI request to the Department on 20 August 2013 requesting:
1. all details of a complaint to the Department of Agriculture district veterinary office, Cork, in which named Department officials came to his yard looking for dead pig carcasses in April 2011,
2. all written and verbal details and reports after inspection by the named Department officials,
3. who made the allegation,
4. details of who received the complaint and who passed on the information to the inspectors, and
5. copy of phone records and internal memos etc.

The Department issued its decision in response to this request on 18 September 2013, part-granting the applicant's request. The Department released a note from a Department official, a diary entry from a Department official, the Department's inspection report, and two emails from Department officials. The applicant was not satisfied with the Department's response and sought an internal review of this decision on 13 December 2013. The Department issued its internal review decision on 18 March 2014. The Department stated in its decision that there were no further records relating to this complaint. It further stated that there was no record of the person who had made the complaint/allegation that there were pig carcasses on the applicant's premises as this was made via an anonymous phone call.

The applicant appealed this decision to this Office on 19 May 2014. The applicant contends that he should be entitled to know the identity of the person that made the complaint against him and that further records should exist in a case such as this where an inspection was carried out by the Department on foot of a serious complaint against the applicant.

During the course of this review, the Department stated that it did not hold any further records relating to the applicant's request, and detailed the searches conducted pursuant to the applicant's request. Mr. Christopher Campbell of this Office wrote to the applicant on 23 July 2014 outlining the response of the Department and the reasons given by the Department as to why no further records existed; he further outlined his view that section 10(1)(a) of the Act applies in this case on the basis that the Department does not hold any further records relating to the request and invited the applicant to submit any further views or information that he might have in relation to his request. The applicant made a final submission on 7 August 2014 and having considered the submissions of the applicant and the Department and all available information, it is my view that this review should now be brought to a close by the issue of a formal binding decision.

In conducting this review I have had regard to the decisions of the Department on this request and its communications with this Office, to the communications of the applicant with this Department and this Office, to the submissions of the applicant, and to the provisions of the FOI Act.

Scope of Review

The position of the Department is that it does not hold any further records relating to the applicant's request. Therefore this review is concerned with the question of whether the Department was justified in its decision to refuse access to the information requested on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary matters

While the Department identified five records as coming with the scope of the applicant's request, I note that three of the records were created after the receipt of the request and are not, therefore captured by the scope of the request. Nevertheless, the contents of the records are relevant in so far as they contain statements made by three Department officials of their recollections of matters pertaining to the complaint made against the applicant at the time. While the applicant is of the opinion that certain of the information contained in the records released is false and he has given his reasons for holding this opinion, he has presented no evidence to support that opinion. In any event, this Office has no role in examining the veracity of records in this case except in so far as reliance may or may not be placed on their content in considering whether other relevant records might exist.

Analysis and Findings

Section 10(1)(a)
Section 10(1)(a) of the FOI Act provides that a public body may refuse to grant a request 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 cases 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In this case the Department stated that it was established at the very preliminary stage of its response that there was no foundation to the complaint made, and that in such circumstances there would be no reason for it to create any records other than those that have been disclosed. The Department explained that when an alert is received in circumstances such as are involved in a case such as this, (a complaint to the Department that there were pig carcasses on the applicant's premises) the priority is to respond to the situation on the ground. Where there is no foundation to the alert a decision is taken locally in regard to ceasing the investigation. No file, record or other such archive is created with the exception of the documents already disclosed. While the Department limited its searches to contacting the officials who had knowledge of the complaint, it stated that there were no others areas where relevant records might be held.

On the matter of the existence of records which might contain details of the identity of the complainant, the Department stated that complaint was made on an anonymous basis by phone and no further records relating to that phone call exist. It further stated that even if the identity had been known to the Department, it is highly unlikely that the caller's identity would be released in such circumstances. It would appear from the applicant's contacts with this Office that he does not accept that the complaint was made anonymously. However, no evidence has been presented to me to suggest otherwise.

I note that the applicant's FOI request included a request for "copy of phone records and internal memos etc". In his application for internal review, he alleged that the caller who contacted the relevant Department official is a person well known to that official as the official has the caller's number on his phone and the official calls to inspect his premises for feedstuffs. He alleges that the official's phone records will show this and that the records can be provided on request by the network provider. It appears to me that the applicant is essentially seeking access to any information which might identify the complainant and that he expects the Department to take steps to determine whether the identity of the caller might be obtained, notwithstanding the fact that the call was made anonymously and that the Department, in good faith, accepted the complaint as having been made anonymously.

There are a number of points I would make in this respect. Firstly, the FOI Act provides a right to access records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act does not oblige public bodies to create records to respond to the request, nor does it require public bodies to take measures to obtain the information sought. Secondly, the FOI Act does not provide a mechanism for requiring public bodies to take procedural steps such as those apparently sought by the applicant relating to the identification of anonymous complainants. Furthermore, even if the Department holds phone records dating back three years which contain a breakdown of all calls made to the phone number of the official concerned, and even if the Department was in a position to identify the precise time and date the call was made, this of itself would not necessarily establish the identity of who made the call. Accordingly, the question I must consider is whether it would be reasonable to expect the Department to conduct a trawl for phone logs which are now over three years old, assuming that the Department ever held call logs on the mobile phone of the official in question. I think it is also noteworthy that the Department's position in relation to complaints received is that it is highly unlikely that the caller's identity would be released in such circumstances. In the particular circumstances of this case, I am of the view that it is not reasonable to require the Department to conduct the searches identified by the applicant.

Having regard to the details of the searches actually carried out and of the procedure adopted by the Department in cases such as this, I am satisfied that all reasonable steps have been taken to locate all relevant records relating to this request and that they do not exist or cannot be found. Accordingly, I find that the Department was justified in its decision to refuse access to further relevant records relating to the request on the basis of section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, 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 eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
17 September 2014