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Whether the Department was justified in its decision to refuse access to further personnel records relating to the applicant under section 10(1)(a) of the FOI Act, on the basis that such records either do not exist or cannot be found after reasonable searches had been carried out

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 June 2014, the applicant submitted a request to the Department for all records relating to a particular sick leave absence. The Department's decision issued on 31 July 2014, granting access to records, subject to redactions of the personal information of third parties under section 28(1) of the FOI Act. The applicant sought an internal review of this decision by way of letter dated 18 August 2014, stating that she believed that some relevant records had not been provided to her The Department's internal reviewer issued his decision on 30 September 2014, upholding the initial decision. On 7 October 2014, the applicant sought a review by this Office of the Department's decision.

During the course of the review, Mr Niall Mulligan of this Office engaged with the applicant and the Department so as to clarify her reasons for believing that further records exist, and has fully explored these matters with the Department. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to correspondence between this Office and both the applicant and the Department, and to correspondence between the applicant and the Department. I have also had regard to the contents of the records at issue, which were provided to this Office for the purpose of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

While there were redactions to certain records furnished to the applicant under section 28(1) of the FOI Act, she has not taken issue with these, either in her request for review or in subsequent correspondence with this Office. Accordingly, this review is concerned solely with the questions of whether the Department was justified under section 10(a)(a) of the FOI Act in refusing to release further records, on the basis that such records either do not exist or cannot be found after reasonable searches had been carried out.

Analysis and Findings

Section 10(1)(a) of the Act provides that a head 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 FOI Act confers a right of access, in certain circumstances, to records held by public bodies. If a request is made in the form of a question, public bodies will generally attempt to identify records which contain answers to the questions asked. The Act does not provide for a right of access to records which ought to exist, nor does it confer a general right of access to information. Furthermore, it does not require a public body to create records. If information required by an individual is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the required information.

In cases where an applicant claims that relevant records are held by a public body that have not been released, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist was justified. This means the Commissioner 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his 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 at www.oic.ie).

The applicant suffered an occupational injury in 2005. She was granted sick leave on the basis of an injury on duty. The kernel of the applicant's submission was her view that references to the nature of that injury in later correspondence must have been derived from contemporaneous records. However, she stated that there were no references to the nature of the injury in the records she received. She concluded, therefore, that other records must exist from which the Department's officials had obtained this information.

The Department's Official stated that she had obtained the information from a letter sent by the applicant. Mr Mulligan put this to the applicant, and she accepted that she had sent the letter and that the official's position was reasonable.

An issue arose in this review in relation to a file note which the applicant claimed had not been released to her. The Department's position is that this record had previously been released. In any event, I note that the Department is willing to provide a copy of this record to the applicant and I direct it to do so on foot of this review.

The Department stated that searches were carried out of the applicant's personnel file in the relevant human resources section. In the course of this review, a number of further enquiries were made of the Department on foot of the applicant's concerns. The Department also states that it interviewed a staff member referred to by the applicant concerning her dealings in the matter. No further records were located. I have no reason to doubt the Department's submissions, and I am satisfied that the searches carried out were reasonable. Accordingly, I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the Department's decision to refuse access to further records on the basis that such records either do not exist or cannot be found after reasonable searches had been carried out.

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