Whether the Department was justified in refusing access, under section 15(1)(a), to specified hand-written notes taking by a named Tribunal member during the applicant's appeal on the basis that they no longer exist

6 May 2022

Background

In a request dated 31 August 2021, the applicant sought access to all information held in relation to his appeal heard on a specified date by the Criminal Injuries Compensation Tribunal (the Tribunal), including all information leading up to the appeal, created on the day of the appeal, and after the appeal. In a decision dated 13 October 2021, the Department granted access to 40 records it identified as coming within the scope of his request. Some information was redacted from two of the records under section 37(1) of the FOI Act.

On 17 October 2021, the applicant sought an internal review of the Department's decision, on the ground that certain specified records had not been released. In its internal review decision, the Department said certain notes taken by a member of the appeal panel were destroyed once the decision on the appeal was taken. It also refused to provide a typed copy of certain notes that were previously released on the ground that it is not required to create a new record under the FOI Act. It cited section 15(1)(a) in support of its response on both issues, which provides for the refusal of a request where the record sought cannot be found or does not exist. The Department further clarified that certain other records the applicant identified in his application for internal review had already been released to him. It also provided information concerning the role a named staff member played in the appeal process.

On 10 January 2022, the applicant applied to this Office for a review of the Department's decision to refuse access to the hand-written notes taken by the panel member during the hearing of his appeal.

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 the records sought no longer exist, and she invited him to make a submission on the matter. While the applicant made some submissions during a phone call with the Investigating Officer, no further written submissions were received by 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 between the applicant and the Department outlined above and to communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to the hand-written notes taken by a specified member the appeal panel during the hearing of the applicant's appeal.

Preliminary Matters     

Before considering the substantive issue arising, I wish to make a number of preliminary points. I note that in his application for review, the applicant provided a detailed account of why he considers that the final decision of the appeal panel does not reflect the commitments that were made to him at the hearing of the appeal. He expressed specific concerns about the manner in which the appeal was conducted. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Accordingly, the appropriateness, or otherwise, of the actions taken by the Department or the Tribunal in relation to the applicant's appeal is not a matter for consideration by this Office.

Second, it is also relevant to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).

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. The Commissioner's 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 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 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 relevant records and of its reasons for concluding that no relevant records exist. As the applicant has already been provided with the details of the Department's submission, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In summary, the Department's position is that the notes sought do not exist as they were destroyed by the panel member who created them. It said it contacted the panel member and he confirmed that he had destroyed all documentation relating to the appeal in line with his standard practice once a decision has been made on an application and in line with data protection requirements and the provisions of the oversight agreement between the Department and the Tribunal members. The Department provided this Office with a copy of the panel member's email wherein he confirmed that he had not retained his notes in this case.

The Department explained that the Criminal Injuries Compensation Scheme provides, at paragraph 19, as follows:

The Tribunal will be free to draw up and publish any instructions it considers necessary regarding the procedure for administering the Scheme. However, these instructions will be consistent with the provisions of the Scheme and with the general intention that the administration of the Scheme and, in particular, proceedings before the Tribunal, should be informal.

It referred to an Instruction relating to remote hearings that issued under paragraph 19, which provides, among other things, that remote appeal hearings will not be recorded. The Department said it explained to the applicant in its internal review decision that the only notes retained by the Tribunal of an appeal hearing are the handwritten notes taken by the secretary to the Tribunal, a copy of which were already released. It said these notes are taken for the purpose of assisting the Tribunal in the event of any clarifications being sought by members following hearings and are not meant to represent any official or independent record of the meeting. It said the Tribunal had discussed appeal hearings at a meeting with the Department in June 2021 and it was decided that appeal hearings should not be recorded and that the instruction should reflect that. It said it was decided that the secretary's record would be the only note retained of the meeting. The Department provided this Office with an extract from the minutes of the meeting in question wherein those decisions were noted.

The Department also referred to section 3.6 of the oversight agreement, which provides, at relevant part, as follows:

Applications to the Tribunal consist of personal data from applicants, who are seeking a decision from the Tribunal on their application under the Criminal Injuries Compensation Scheme. In carrying out its work, the Tribunal and Tribunal staff will adhere to all data protection obligations as provided for in the Data Protection Act, 2018 and the EU's General Data Protection Regulation.

The original files are managed by Tribunal staff. They will be held securely and processed in accordance with data protection law. Tribunal staff must adhere to the internal Department data protection procedures and undertake all requisite training. Any breaches of data protection law must be reported to the Department's data protection unit via the Principal Officer.

Copies of the applications and all related data must be provided by the secretariat to Tribunal Members so that decisions can be made on files. As such, the Department is the custodian of the data for Tribunal Members. Once the Tribunal Chair and Ordinary Members have finished working on applications, they will either return copies of files to the secretariat for destruction or commit to the secure destruction of all copies of any files in their possession. Any electronic records created by Tribunal Members will be stored securely and will only be retained for as long as is necessary, after which they will be destroyed. (emphasis added)

The Department added that the personal handwritten notes taken by the panel member at the online appeal hearing were only ever only in his possession and were destroyed following the issuing of the Tribunal appeal panel decision to the applicant. It explained that Tribunal members are independent practising barristers and solicitors appointed by the Minister for a 5-year term, who provide their services on a part-time basis for which they are paid fees. It said they are not employees of the Department. It said the Tribunal is constituted as such so that the decisions of the Tribunal are independent and neither the Department nor the Minister have any role in decision-making.

Following receipt of the Investigating Officer's description of the explanation given by the Department in its submissions, the applicant contacted the Investigating Officer by phone to discuss the matter. It appears the essence of his argument was that a copy of the notes at issue should have been retained. However, he has not, to date, provided any supporting evidence to suggest that a copy of the notes does, indeed, exist. The FOI Act provides for a right of access to records held by FOI bodies. If the records sought do not exist, that is the end of the matter.

In the circumstances, and having regard to the details of the Department's submissions, I find that it was justified in refusing access, under section 15(1)(a) of the Act, to the records sought on the ground that they no longer exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access, under section 15(1)(a), to specified hand-written notes taking by a named Tribunal member during the applicant's appeal on the ground that the records no longer exist.

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