Whether the Department was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for copies of certain records referencing his allegations of corruption by officials of a named Bank on the ground that the records sought do not exist or cannot be found

19 October 2020

Background

According to the applicant, he had a telephone conversation with the Director of the International Finance Division at the Department in October 2018 concerning allegations of corruption by officials of a named Bank. He subsequently sent an email to the Director’s personal email account setting out details of his allegations.

In a request dated 22 June 2020, the applicant made a six-part request for access to copies of correspondence and emails, internal memoranda, reports, notes (including handwritten notes), and electronic communications (other than emails) sent or received by a number of named parties through work or personal email accounts referencing his allegations of corruption by Bank officials.

On 13 July 2020, the Department refused the request under section 15(1)(a) of the FOI Act on the basis that no relevant records could be found. On 4 August 2020, the applicant sought an internal review of the refusal of his request following which the Department affirmed its original decision.  The applicant subsequently sought a review by this Office of the Department’s decision.

During the course of the review, Ms Greenalgh of this Office provided the applicant with details of the Department’s submissions regarding the searches it had conducted for relevant records and informed him of her view that the Department was justified in refusing the request on the ground that the records sought did not exist or could not be found. The applicant asked that his case proceed to a decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the applicant and the Department and to the communications between this Office and both the Department and the applicant 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, in refusing the applicant’s request for copies of certain records referencing his allegations of corruption by Bank officials on the ground that the records sought do not exist or cannot be found.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comments. The remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As noted above, this review is confined to considering the Department’s refusal of his FOI 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 its submissions to this Office, the Department explained that Ireland is a shareholder of the named Bank along with 68 other countries, the European Union and the European Investment Bank and that its International Finance Division is responsible for managing Ireland’s relationship with the named Bank. It said it does not have responsibility for the examination or investigation of complaints or allegations in relation to the bank’s operations. It said that allegations of this nature are a matter for the Office of the Chief Compliance Officer at the named Bank, which has an independent function to investigate such matters, Financial/Banking Supervisory Authorities or the National authorities in the region where it is alleged the corruption took place.

The Department said that it understood that the parameters of the request related to any information generated or held by it subsequent to the receipt of the applicant’s allegations and up to the date of the FOI request. Following a search of relevant email accounts, paper files, the eDocs and eCorrespondence system, the Department was unable to trace any documents concerning the FOI request.  The Department detailed the steps it took to search for the records sought. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.

In summary, the Department set out the key words used in a search of relevant email accounts to locate the documents.  It explained the workings of the eCorrespondence and eDocs systems and said that searches of these systems did not yield any results. It provided details of contacts with several relevant individuals who stated that they did not have any records. It said a physical search of paper files in certain relevant locations did not yield any results. 

The Director of International Finance Division said he has no records relating to the FOI request. He said he recalled his conversation with the applicant but made no record of the conversation and that he checked his personal email account but could find no relevant records. He said it was understood that the applicant was to make further contact with him about a meeting but no further contact was made by either email or telephone and he formed the impression that, for whatever reason, no further meeting was needed. He said he spoke with the incoming Irish Director at the named Bank at a meeting at the Bank in London on 1 November 2018 about the allegation and asked him to make enquiries about the complaint.  He said he asked the Irish Director to make these enquiries in case the applicant contacted him again, which did not occur.

The Department further said that as part of the search process, it contacted the Irish Director at the named Bank, who said he did not have any records pertaining to the applicant’s complaint of 2018. He said he contacted the Director of Investigations at the Office of the Chief Compliance Officer (OCCO) at the named Bank.  The Director of Investigations said that a complaint made by the applicant was thoroughly reviewed by the OCCO in 2016. He said the applicant was informed in 2016 that the OCCO would not take any action on foot of his complaint.

In essence, the Department’s position is that no relevant records exist as the matter did not progress beyond the initial discussion between the applicant and the Director of International Finance Division, apart from the informal enquiries outlined above.

Having considered the Department’s description of the searches undertaken and its explanation as to why it considers that no relevant records exist, 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 the request under section 15(1)(a) of the Act on the ground that no relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse, under section 15(1)(a) of the Act, the applicant’s request for copies of certain records referencing his allegations of corruption by Bank officials on the ground that the records sought do not exist or cannot 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 affect 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