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Case Number: 150375

Whether the Department was justified in its decision to refuse access to records relating to an agreement signed by the applicant's late grandfather in connection with a specified water supply on the ground that they do not exist or cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Department on 27 March 2015 for all records concerning himself, his father, his grandfather, and his great-grandfather in connection with an agreement signed in the 1920s regarding the supply of water from a lake which was partly owned by his grandfather.

On 25 May 2015, the Department issued a decision in which it released 36 records in full to the applicant, with a further seven records released to the applicant with the redaction of personal information relating to third parties. The applicant sought an internal review of the Department's decision on 17 June 2015. On 7 July 2015, the Department issued an internal review decision upholding its original decision. The applicant sought a review by this Office of the Department's decision on 2 November 2015.

I note that Mr Art Foley of this Office wrote to the applicant on 14 March 2015, providing details of the searches which the Department had carried out for relevant records and of its record management practices in relation to the type of records sought, and that he informed the applicant of his view that the Department was justified in its decision that no further records exist or can be found. The applicant wrote to Mr Foley on 23 March seeking clarification on a number of issues. Having received clarification from the Department on these issues, I consider it appropriate that this review be brought to a close by issue of a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the Department, and to correspondence between this Office and both the Department and the applicant.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing access to further records sought by the applicant on the ground that they do not exist or cannot be found.

Analysis and Findings

The Department stated that no further records coming within the scope of the applicant's request can be located. Therefore, section 15(1)(a) of the FOI Act is relevant. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

In its submission to this Office, the Department provided details of the searches it undertook in order to locate the records sought by the applicant, and of its relevant records management practices. As I have outlined above, Mr Foley has provided the applicant with these details. Therefore, while I do not propose to repeat those details in full, I can confirm that I have regard to them for the purposes of this decision.

In summary, the Department stated that the Property Management Branch and Civilian Employees Branch were searched for records within the scope of the applicant's request. It stated that these searches were performed both manually and electronically, using the names and locations which the applicant provided. It stated that all original licences, leases, agreements and deeds held by the Property Management Branch in its strongroom relating to the location specified by the applicant were searched. It also stated that locations in which records relating to other areas of the country are held were manually searched for records, in order to counteract the possibility that the records sought by the applicant had been misfiled. The Department stated that this search included files which would include the incorrect addresses which were recorded on certain of the records released to the applicant. The Department located and released to the applicant 36 records which it located in the course of its searches of these locations.

The Department also stated that the Kardex system (which holds pre-2000 records relating to civilian employees) utilised by the Civilian Employee Branch was consulted for records within the scope of the applicant's request. It also performed searches of it's Central File Registry for records within the scope of the applicant's request.

With respect to the the applicant's concern as to the absence of records from before 1949, the Department stated that it has not located any records within the scope of the applicant's request within this time period, although other records, not relevant to the applicant's request, from this time period exist. It stated that it believes the records sought have been destroyed, due to the time period involved and the searches which have been performed for the records, but that it does not possess records which can conclusively demonstrate this. The Department also stated that although it performed searches for records dating up to the day on which the applicant's request was received, no records created after 2003 were located. I have no reason to doubt the Department's submissions on these points.

Having considered the submissions of both parties and the steps taken by the Department to locate records, I am satisfied that the Department has taken all reasonable steps to locate records within the scope of the applicant's request. While the FOI Act provides for a right of access to extant records held by FOI bodies, it does not provide for a right of access to records that a request considers ought to exist even if it is acknowledged that such a record ought to exist. I find, therefore, that the Department was justified in its decision to refuse the applicant's request for further records relating to his property and his relatives under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot 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 the decision of the Department to refuse the applicant's request for further records on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain there 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