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Mr W and The Department of Justice and Equality (FOI Act 2014)

Case Number: 160391

Whether the Department was justified in refusing the applicant's request for copies of certain documents which the applicant supplied to the Department in support of his application for residency, on the ground that the records sought 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 17 June 2016 for copies of all documents that it held on file and which had been considered in relation to his application for residency in the State in 2005/2006. On 12 August 2016, the Department informed the applicant that it was granting the request and it released a total of 19 records.

On 19 August 2016, the applicant sought an internal review of that decision on the ground that he had not received all relevant records. Specifically, he stated that he was seeking photocopies of the following original records that he and his wife had forward to the Department in 2005 during the processing of his residency application:

- birth certificates for the applicant and his wife,
- his wife's contract of employment and P60,
- his temporary residence certificate, and
- a rent book belonging to the applicant and his wife.

On 8 September 2016, the Department affirmed its decision. In its decision, the Department stated that the relevant original documents had been returned after his application for residency was granted and that no photocopies were made of the documents before they were returned. On 19 September 2016, the applicant sought a review by this Office of the Department's decision in respect of photocopies of the rent book, his wife's contract of employment and her P60.

During the course of this review, the Department provided this Office with information regarding the applicable record management policy and the searches conducted to locate the records sought by the applicant. Ms Buckley of this Office provided the applicant with details of those searches by telephone on 10 November 2016. She also informed the applicant of her view that the Department was justified in deciding that the records sought did not exist or could not be found. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant's request for photocopies of the rent book and his wife's contract of employment and P60, which were supplied to the Department during the processing of his residency application in 2005, on the ground that these records do not exist or cannot be found.

Preliminary Matter

Upon receipt of the applicant's FOI request, the Department wrote to the applicant and informed him that it had decided to extend the time limit for issuing a decision by four weeks under section 14 of the Act. Under section 14, an FOI body may extend the period for considering a request by up to four weeks if it considers that the request relates to such number of records, or the number of other FOI requests relating to the same information or records that have been made to it is such, that compliance with the four week time limit is not reasonably possible. No such circumstances appear to have arisen in this case. Rather, it appears that the Department simply decided to extend the time frame for considering the request. Given that the Department has been subject to the FOI regime for the past 18 years, this is unacceptable. I expect the Department to ensure that any future extensions of the time limits for issuing decisions are strictly in accordance with the provisions of the FOI Act.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to record may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases 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 consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In a submission to this Office, the Department provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms Buckley of this Office has already provided the applicant with these details. In summary, the Department stated that while the current policy in the Residence Unit is for photocopies of original documents to be made before the documents are returned to applicants and for these copies to kept on file, the Department was unable to say with certainty what the policy was in 2005/2006 when the applicant's application for residency was processed and granted. In an effort to locate the records sought by the applicant, the Department stated that it manually searched the applicant's file and linked files. The Department noted that a search of linked files established that no other parts of the Department were dealing with the applicant at the same time and, as such, no copies of the relevant documents would have been forwarded to other units. It also stated that an electronic search was carried-out for other files relating to the applicant, however, no other files could be located.

The Department stated that while photocopies of some original documents submitted in support of the application for residency were located on the applicant's file, including copies of his P60 and payslips, passports for the applicant and his wife, and the couple's marriage certificate, the specific records sought could not be located. While it stated that it could not be certain, the Department suggested that the reason these documents were copied and retained on file, and those sought were not, may have been due to the fact that the application for residency was from the applicant and that copies of his documents, and not those of his wife, may have been retained for future reference.

While it is unfortunate that the Department cannot locate the records sought, I am satisfied, having regard to the details of the searches conducted as outlined above, that it has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the Department was justified in its decision to refuse the applicant's request for access to the records sought on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

 


Stephen Rafferty
Senior Investigator