Whether the Department was justified in its decision to refuse the applicant’s request for access to additional records relating to him other than those already released on the ground that no further relevant records exist or can be found

2 March 2021

Background

All references to the applicant in this decision can be taken to refer to the applicant and/or his solicitor, as appropriate.  On 29 April 2020, the applicant submitted a request to the Department for access to all information relating to him held by the Department, including any documents held by the Immigration Service Delivery Unit and the Garda National Immigration Bureau (GNIB).

The Department assigned the request to two divisions within Immigration Service Delivery and issued two decision letters to the applicant. On 6 July 2020, it issued a decision in respect of the Domestic Residence and Permissions Division wherein it granted access to two batches of records in full. On 29 July 2020, it issued a decision in respect of the Repatriation Division wherein it refused the applicant’s request under sections 15(1)(i)(i) and 15(1)(c) of the FOI Act.

On 10 August 2020, the applicant sought an internal review of the Department’s decision dated 29 July 2020 in respect of the Repatriation Division. He indicated that if additional records are released by Repatriation Division and it appears that other documents might exist that have not been released, he reserved the right to seek a full review of the decision of the Department as a whole. On 15 October 2020, the Department annulled the decision of the Repatriation Division and granted access to 11 pages of records in full. 

Following a further exchange of correspondence between the parties, the applicant sought a review by this Office of the Department’s decision. He asserted that the Department had not undertaken adequate searches in response to his request and suggested that were further relevant records in its possession that had not been identified.

In the course of correspondence with this Office during the review, the Department said that following a further inspection of the applicant’s file, the Repatriation Division noted records that had not been provided when processing the request and in order to ensure all relevant records had been provided, it would issue a complete copy of the file, including those that had previously been released. It did so on 5 February 2021.

This Office also provided the applicant with details of the searches undertaken by the Department to locate relevant records. In response, the applicant said that the main reason he sought a review of the Department’s decisions is that the files released contain no internal correspondence or memoranda whatsoever, which would be expected to be generated in any application review process.

I have now completed my review of the Department’s decision and have decided to bring the case to a close 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 as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant’s request for access to additional records relating to him other than those already released on the ground that no further relevant records exist or can be found.

Preliminary Matter

In his application to this Office the applicant raised concerns about the manner in which the Department processed his FOI request. It is important to note that this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the Department. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the Act.  All previous such investigations have involved more than one public body. 

However, I would like to make the following comment. The applicant correctly submitted his request to a single organisation, namely the Department.  While I fully accept that the Department is significant in size and that the different functional areas may be best placed to make informed decisions on records relating to their functions, I see no reason why the Department could not have coordinated the responses of the two relevant divisions and issued a single composite original decision in this case.  

The Department did not appear to have regard to the possibility that issuing two separate decisions could give rise to potential confusion on the part of the applicant.  Indeed, it was not until after the applicant sought clarification, on receipt of the decision dated 6 July 2020, that the Department outlined that a second decision would issue from a different division. 

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 provided details of the record storage practices relevant to Immigration Service Delivery, including the Domestic Residence and Permissions Division and the Repatriation Division, and the searches conducted to locate the records sought by the applicant.  

The Department said that Immigration Service Delivery’s Asylum and Immigration Strategic Integration Programme (AISIP) database was searched using the applicant’s name and identification number as search terms.  It noted that these searches identified the applicant’s open applications, three of which fell within the remit of the Domestic Residence and Permissions Division and one of which fell within the remit of the Repatriation Division.

The Department said that both the Domestic Residence and Permissions Division and the Repatriation Division hold records on physical files which can be located using an applicant’s identification number.  It said all physical records are attached to the physical files.  It explained that when physical files are not in use by a division, they are stored in the registry department assigned to that division.

In relation to electronic records, the Department said that where a representation is made electronically to the Domestic Residence and Permissions Division, the record is stored on the division’s database, and where a representation is made electronically to the Repatriation Division, the record is stored on the division’s case-tracking database, printed, and attached to the physical file.

In respect of the Domestic Residence and Permissions Division, the Department said that, as two of the applications were paper based, the applicant’s physical file was requested to obtain relevant documentation and, as one of the applications was processed fully on the division’s database, the database was searched using the applicant’s name. In respect of the Repatriation Division, the Department said the applicant’s physical file was searched, as was the division’s case-tracking database, using the applicant’s name and identification number.

Subsequent to the Department’s release of additional records located during the review on 5 February 2021 as referenced above, the Investigating Officer sought further explanations of why certain types of records had not been released. In its response of 22 February 2021, the Department said that while considering the questions raised during the course of the review, it had located a number of records that were not noted during its response to the FOI request and should have been. It said it wishes to properly schedule and make decisions on these records for the requester.

In the circumstances, it is clear to me that the Department did not take all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.  As such, I simply cannot find that section 15(1)(a) applies in this case. I would add that that the manner in which the Department processed the applicant’s request is wholly unsatisfactory. Given the Department’s description of its records management practices in respect of records such as those at issue in this case, it is very difficult to understand how the Department failed to identify all relevant records during its initial processing of the request or how it has, on two subsequent occasions, located additional records not originally located.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the Department in its entirety, the effect of which is that the Department must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case.  I direct the Department to conduct a new decision-making process on the applicant’s request.

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