Whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant-�s request for a copy of a review leading to the establishment of a new Investigations Division within the Department in 2014, other than those already released, on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

22 August 2022

Background

In 2014, in response to a Parliamentary Question, the then Minister for Agriculture, Food and the Marine said that as a result of a review, he had decided on the establishment of a new Investigations Division within the Department on 8 July 2014.

During 2021, the applicant was engaged in correspondence with the Department in relation to a HR issue. In a letter to the applicant dated 23 August 2021, the Secretary General referred to an -�initial review that established the Investigations Division in 2014-�. At some stage during the course of the engagements between the parties, the Department provided the applicant with a copy of a 19-page document relating to that review, described, at the bottom of the document, as -�Proposal to MAC (14 July 2014) for the establishment of Internal Investigations Division-�

On 23 February 2022 the applicant submitted an FOI request to the Department for a copy of the 2014 review of Investigations within the Department referenced by the Secretary General in his letter of 23 August 2021. It seems he subsequently clarified that he was seeking -�the original review -� as well as whatever drafts of it were produced.-�

In its decision dated 9 March 2022, the Department granted the request. It released a copy of a nine-page document, described in the Schedule of records provided as a -�Proposal to MAC (22 May 2014) for the establishment of DAFM Investigations Unit. (Approved by Minister)-�. The schedule records the date of the record as -�8th July 2014-�. The Department also provided three earlier drafts of the Proposal. On 21 March 2022, the applicant sought an internal review of that decision on the ground that the documentation provided does not constitute a review as referenced by the then Minister for Agriculture in 2014. In its internal review decision dated 13 May 2022, the Department affirmed its original decision.

On 27 May 2022, the applicant applied to this Office for a review of the Department-�s decision. In his application for review, he argued that the records released are not the -�review-� but rather are records dealing with the results/conclusions of the review. He argued that the primary document released;

-�is not a review of "all investigations" as such a review would have a significant section dealing with investigations in the past ie all investigations and lessons to be learned from these past investigations with its associated recommendations. This approval document is primarily dealing with the future setting up of an Investigations Unit rather than a review-�

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 no additional records exist. The Investigating Officer invited the applicant to make further comments and/or submissions on the matter, which he duly did.

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 submissions made by the Department in support of its decision and to the applicant-�s comments in his application for review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant considers that the records released are not the records he sought. The Department-�s position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant-�s request.

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. Our 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 that 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 further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

The Department said it provided the applicant with the review approved by the MAC and then Minister to establish the new Investigations Unit for both Internal and External investigations and the three draft reports presented at the three MAC meetings on 1st, 22nd and 30th May 2014. In summary, the Department-�s position is that the only relevant records held are those that were released and that no other relevant record exists. It said the released records are not a review and neither are they documents dealing with the results of a review as there is no indication from the records that such a formal review process of the Investigations Division ever took place. It said the documents released include the initial proposal formulated by the then Principal Officer of Management Services Division to set up an Internal Investigations Unit in the Department, and the subsequent amendments to the initial document to reflect the external Investigations operations.

The Department added that at the time, a Special Investigations Unit existed which dealt only with external investigations. It said there was a proposal to merge the proposed Internal Investigations Unit and the existing External Investigations Division into one Division and the new Investigations Division was formed and the old Special Investigations Unit dissolved. It said the paper presented to the Management Advisory Committee (MAC) on 22nd May 2014 at which the MAC agreed to establish a new Investigation Unit in the Department for both internal and external investigations (record No 2 provided to the applicant in reply to FOI 22/086) had to be subsequently amended to reflect the operating procedures of the External Investigations which reflects 99% of the investigations work carried out by the Department staff. It said this updated paper presented to the MAC on 22nd May 2014 now reflects the operations of the new Investigations Division. It said the record dated 22 May 2014 that established the DAFM Investigations Unit was presented to the MAC meeting of 22^nd May 2014 and the MAC minutes-� state that -�MAC agreed to establish a new Investigation Unit in the Department for both internal and external investigations.-�

The Department further said that there are no records showing terms of reference for this ad hoc piece of work. It acknowledged that the statement from the then Minister, that he had -�reviewed the structure and governance around the conduct of all investigations by my Department, both internal and external-�, would lead one to believe that documentation exists, but it said this exercise appears to have been no more than consultations by the relevant staff member with the Office of the Revenue Commissioners and the Department of Social Welfare as to how they conducted their investigations. It said this lead to the formulation of a proposal to establish an Internal Investigations Unit and the subsequent decision to merge this proposal into the external investigations work and form a New Investigations Division that would be responsible for both internal and external investigations.

The Department added that there are summary notes taken of the points discussed between the relevant staff member and the personnel he met in the Office of the Revenue Commissioners and the Department of Social Protection of their internal investigations processes but that these were not released as they were not the records sought, namely a copy of the original review or drafts of it. It said the records describe the documents and processes of the Office of the Revenue Commissioners and the Department of Social Protection only, and not the documents and processes of the Department.

The Department provided this Office with details of the searches carried out for the requested records. It said searches were carried out in different divisions i.e. Investigation Division, Corporate Affairs Division and Management Services Division. It said both physical and electronic searches were conducted within individual mailbox, individual folders as well as shared folders.

The Department added that emails received from and discussed with the Chief Veterinary Officer relating to an earlier FOI request from the applicant were also reviewed in search of relevant information. It said the search involved the Chief Veterinary Officer because, as stated by the Department, -�he is the only person with some memory of the developments at this time and the matter was discussed with him to gain some clarity as to why no report on a review of the Investigations Division exist.-� The Department also provided details of the keywords and key phrases used during its search. As outlined above, full details of the searches undertaken by the Department were provided to the applicant by this Office. In response, the applicant requested a formal and legally binding decision.

In essence, the applicant appears to be of the view that the record released does not comprise the review referenced by the then Minister based on his belief that such a report would contain considerably more information that the record released (e.g. his assertion that -�such a review would have a significant section dealing with investigations in the past-�). However, he has presented no evidence to suggest that I should not accept the Department-�s explanation of the matter which, in my view, is quite plausible. Record 1 comprises an eight-page report comprising a proposal for the establishment of a new Investigations Unit and a one-page summary of the proposal addressed to various parties, one of whom was the Minister. It seems to me that this is, in all likelihood, the record sought.

In the circumstances, and having considered the details of the searches undertaken by the Department and of its explanation as to why no further records exist, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records apart from those already released on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Department-�s decision to refuse access, under section 15(1)(a) of the Act, to any further records other those already located and released on the basis that no further relevant 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