Whether the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for all text messages received or sent by Minister Simon Coveney regarding a gathering at Iveagh House following the UN Security Council election on June 17, 2020

3 March 2023

Background

In a request dated 26 August 2022, the applicant sought access copies of all text messages received or sent by Minister Simon Coveney (the Minister) regarding a gathering at Iveagh House following the UN Security Council election on June 17, 2020, including SMS and messages on other messaging apps, and copies of all text messages sent and received by the Minister between 28 December 2021 and 10 January 2022, regarding the same 2020 gathering. As the Department failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of the request. On 3 November 2022, the Department refused the request under section 15(1)(a) of the Act on the ground that no relevant records were found.

On 14 November 2022, the applicant applied to this Office for a review of the Department-�s decision. Among other things, he said he was aware of a text that would have fallen within the scope of his request and he provided a screenshot of a whatsapp message that he had sent to the Minister within the relevant time period and that he said had been received and read.

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 Department and the applicant as outlined above and to the 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 text messages received or sent by the Minister regarding a gathering at Iveagh House on June 17, 2020 on the ground that no relevant records exist.

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 his application to this Office, the applicant provided a screenshot of a whatsapp message he sent to the Minister on 29 December 2021 which, he argued, fell within the scope of his request. In that message, he had asked the Minister if he had attended the 2020 gathering. He also referenced the Department-�s response to request ref 21/309 that he had submitted on 30 December 2021 wherein the Department had refused the request on the ground that no relevant records existed. Additionally, the applicant provided a screenshot of a whatsapp message he sent to the Minister on 28 January 2022, which he said fell with the scope of his request. In that message, he referenced the decision he received in request ref 21/309. He said the Minister-�s special adviser had confirmed the previous December that the Minister had received a text message that fell within the scope of the relevant request. He asked the Minister to confirm if he had deleted text messages.

In its submissions to this Office, the Department provided background information relating to the request made. It said it had processed a number of similar requests from the applicant. It said that on 30 December 2021, the applicant first submitted a near identical request (ref 21/309) to the request that is the subject of this review (ref 22/229). It said that request ref 21/309 was refused under section 15(1)(a) on the ground that no relevant records existed. It said the applicant submitted a further request (ref 22/043) on 1 February 2022 for records of correspondence (including electronic messages) between the Minister and his special adviser during specified periods. On foot of that request the Department released five records, in full or in part. Request ref 22/043 was subsequently the subject of a review by this Office. In my decision in that case (OIC-122260), I found that the Department was justified in refusing access to any further relevant records under section 15(1)(a) of the Act other than those already released.

The Department added that the applicant submitted another request on 9 February 2022 wherein he sought all records held relating to request ref 21/309, including records of all correspondence and contact with the Minister and his office regarding searches of his devices. It said all 12 records it located were released.

On the matter of the searches conducted, the Department said it conducted a full search in accordance with the FOI Act in respect of the request. It said the request at issue in this review specifically sought records from devices in the possession of the Minister purportedly by a requester identifying as a journalist. It said it has clear procedures regarding its practices for responding to inquiries received from members of the press and that it would be highly irregular for a senior cabinet Minister to field press inquiries directly by text message. It noted that the applicant had sought clarification from the Department-�s Press Office on the same matters detailed in his request on 29 December 2021, to which he received a substantive response. It said these records are held as a matter of course by the Department and are available for release at any time if sought.

The Department referenced its records management policy which provides as follows:

-�except in exceptional circumstances, staff should avoid using non-official IT systems, including personal email accounts or other private messaging services, to conduct Departmental business.-�

It said the Minister and Departmental officers also follow the policy guidelines set out by Department of Public Expenditure and Reform Circular on the -�Use of Private Email and Other Private Messaging Services-�. It said that in adherence to this policy, the Minister transacts all Departmental business on official devices only, which can be suitably searched for relevant records at the request of responding officers to FOI requests. It said these devices include a Department of Foreign Affairs issued mobile phone and a Departmental Apple iPad device. It added that searches in respect of the request that is the subject of this review were conducted on these devices by engaging directly with the Minister along with his devices. It said that as is common practice for FOI requests that seek records directly from a ministerial device, the process consisted of verbally consulting the individual and requesting he perform a search on all relevant devices on requested platforms/applications for the topic sought. It said this is overseen in person by the responding officer, and where relevant, the internal reviewer, and any records in scope are identified and provided for subsequent decision by the responding officer. It added that keyword searches were also performed on all relevant devices, and that the text of the applicant-�s request was used to perform these searches and that these searches were conducted on the basis of the particulars in that text.

This Office subsequently sought the Department-�s comments in respect of the messages the applicant had identified. The Department provided details of the response it received from the Minister-�s special adviser. The special adviser said it was brought to his attention that a journalist had posted on his twitter account a screenshot of a text message he had sent the Minister on 29 December 2021, which he considered to be a highly unusual thing for a journalist to do. He said he sent the twitter account a direct message in response. He said he spoke with the Minster that night about a number of matters, wherein he advised the Minister that the text message sent to him earlier that day was from someone who he considered to be trolling the Minister online and that he should have no contact whatsoever. He said that on that advice, the Minister deleted the message and had no contact.

Subsequently, the Investigating Officer sought further information concerning the whatsapp message the applicant sent the Minister on 28 January 2022. In response, the special adviser confirmed that the Minister and the Department conducted a search of the Minister-�s phone upon receipt of the applicant-�s request and no relevant records were found. He said that based on his advice, the Minister has always immediately deleted any message the applicant sent to his phone.

Having regard to the explanation provided by the Department and the Minister-�s special adviser of the sequence of events, and to the searches actually undertaken in an effort to locate relevant records, I am satisfied that the Department has taken all reasonable steps to locate 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 the records sought on the ground that no relevant 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 the Department-�s decision to refuse access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the basis that no 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