Whether the Department of Agriculture, Food and the Marine (the Department) was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to TB reactors in his herd on the ground that no relevant records exist or can be found

22 June 2022

Background

The applicant in this case has had protracted dealings with the Department in respect of the management of TB reactors and outbreaks on his farm. He has made a number of FOI requests to the Department in respect of same.

In a request dated 22 November 2021, the applicant sought access to the following records:

1. A document with his signed signature of consent that allowed senior veterinary department officials to shoot TB positive reactors in his dairy complex on December 2011
2. The epidemiology investigation and report that the applicant says the Department informed his was carried out on his farm in 2018 including the names of the -�epidemiologist and the veterinary practitioner-�.

In a decision dated 20 January 2022, the Department refused the applicant's request on the grounds of section 15(1)(a) and stated that the records in question did not exist. On 26 January 2022, the applicant applied for an internal review of the decision and provided a number of documents in support of his assertion that the records should exist. These included email correspondence from the private secretary of the Minister of Agriculture, Food and the Marine, a written response to a parliamentary question and correspondence from a Department official. In a decision dated 16 February 2022 the Department affirmed the original decision. On 3 March 2022 the applicant applied to this Office for a review of the Department's decision.

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 applicant's comments in his application for review and to the submissions made by the Department in support of its decision. I have had regard to the above referenced correspondence and to correspondence 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, under section 15(1)(a) of the Act, the applicant's request for records relating to his signed consent for certain actions undertaken by the Department and records relating to an epidemiological investigation and report on the ground that no relevant records exist or can be found.

Preliminary Matters                     

During the course of this review the applicant raised a number of issues about the Department and its actions in relation to TB reactors on his farm including issues that are not capable of consideration by this Office. Our remit does not extend to the examination or investigation of complaints about the administrative actions of the Department, its staff, or any other person or entity, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the Act.

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 role of this Office 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 that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their 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.

The Department provided this Office with details of searches it undertook in an effort to locate any records and provided reasons for concluding that no relevant records exist.  As this Office has already provided the applicant with those details, I do not propose to repeat those details in full here. However, I confirm that I have had regard to them for the purpose of this review.

As noted above, the applicant provided a number of documents in support of his belief that records should exist in this case. These include email correspondence from the private secretary of the Minister of Agriculture, Food and the Marine which references an epidemiological study undertaken, a written response to a parliamentary question which references the consent of the applicant to the euthanizing of calves on his farm, and correspondence from a Department official which also references an epidemiological study.

In its submissions to this Office, the Department maintains that section 15(1)(a) of the Act applies and that the records requested do not exist.

In respect of the first record requested, concerning a document with the applicant's signed signature of consent, the Department states that it would not expect a record of signed consent to exist. It states that a farmer does not need to consent to the destruction of TB reactors in their herd and drew this Office's attention to section 30 of the Animal Health and Welfare Act 2013. This section provides that the Minister may direct that an animal be killed in certain circumstances.

In respect of the second record requested, relating to an epidemiological investigation and report, the Department provided this Office with information about the manner in which an epidemiological study can be undertaken and draws a distinction between a desktop study and an investigation which would result in the production of records. It says that no specific report is generated when a desktop study takes place and it is an examination of existing data. The Department says that it is aware that a desktop study took place as a particular TB test notification was triggered. It states that no onsite epidemiological investigation was carried out on the farm in 2018. Its position is that no epidemiological visit took place and that therefore no report on such an epidemiological investigation exists.

The Department provided details of the searches and consultations undertaken to this Office. It states that these included a review of files relating to the relevant herd number, the examination of electronic records and the interrogation of various IT systems. The Department also states that it consulted with relevant individuals and that no records were identified as a result.

 This Office informed the applicant of the responses received from the Department in respect of the searches conducted. The applicant queried whether the private secretaries of the Minister had been consulted. The applicant also made arguments in respect of the application of the Animal Health and Welfare Act 2013. In respect of the epidemiological investigation and report, the applicant's position appears to be that an investigation should have taken place in the circumstances.

As stated above, the remit of this Office does not extend to the examination or investigation of complaints about the administrative actions of the Department. Furthermore, the FOI Act provides for a right of access to records held by FOI bodies. This office takes the view that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. Thus, a review by us is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records.

In respect of individuals consulted by the Department, having considered the nature of the records being sought, I am satisfied that the approach taken was reasonable in the circumstances. While the applicant has queried whether private secretaries were consulted, I am satisfied that such individuals would not hold the records sought and that the individuals consulted by the Department were more appropriate in the circumstances.

Having regard to the Department's description of the searches undertaken and its explanation as to why no relevant records could be found, I am satisfied that the Department has carried out all reasonable steps in an effort to locate records sought in this case.  I find, therefore, that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for relevant records on the ground that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 15(1)(a) of the Act, to documents relating to the consent of the applicant and an epidemiological investigation on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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