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Mr Y and Department of Education and Skills(FOI Act 2014)

Case Number: 160121

Whether the Department was justified in refusing the applicant's request for access to personal records in respect of the placement of his late father in an industrial school on the ground that they do not exist

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

On 31 October 2015, the applicant made a request to the Department for personal records in respect of the placement of his late father in an industrial school. On 16 November 2015, the Department refused the applicant's request on the ground that the records sought do not exist in the Department. The applicant sought an internal review of that decision on 7 December 2015. The Department affirmed its original decision on 30 December 2015. On 20 February 2016, the applicant sought a review by this Office of the Department's decision.

During the course of the review, the Department made submissions detailing the searches it carried out in response to the applicant's request. Mr Christopher Flood of this Office provided the applicant with those details and informed him of his view that, on the basis of its submissions, the Department was justified in refusing the request. However, the applicant has indicated that he requires a formal decision on the matter. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In carrying out this review, I have had regard to correspondence between the Department and the applicant, as set out above, to details of various contacts between this Office and the Department, and to details of various contacts between this Office and the applicant.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing access to personal records in respect of the placement of his late father in an industrial school on the ground that no such records exist or can be found.

Analysis and Findings

Section 15(1)(a) provides that access to a record 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". In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence, and to assess the adequacy of the searches conducted by the public 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 other information about the record management practices of the public body, insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

The applicant's father was born in 1898. From the records and submissions before me, it appears that it is not certain how the applicant's father came to be placed in an industrial school. However, based on information provided by the applicant, the Department appears to have determined that the industrial school where he was most likely to have been placed was St Joseph's Industrial School, Ferryhouse, Clonmel, Co. Tipperary. The Department explained that it holds records only in respect of residents of 59 industrial and reformatory schools who were placed there by way of a court hearing. While many children were placed in such schools by other means, the Department stated that it does not generally hold any records relating to such cases.

In response to a request from this Office, the Department provided comprehensive details of relevant records management practices and the searches taken to locate the records at issue. I do not propose to repeat those details in full, as they have already been provided to the applicant. What follows is a summary of the Department's submissions.

The Department stated that it conducted thorough searches of its digital archives, the contents of which mirror those of its hardcopy records. It informed this Office that it holds very few records from before the late 1930s and that the most likely source of records of former residents for the period in question are individual school registers. According to the Department, the earliest entries in the school register of St Joseph's, Clonmel, date from 1940, before which the applicant's father would have left school. However, in response to the applicant's request, the Department stated that, as a precautionary measure, it searched not only the register of that school but all existing school registers of schools that would have had male residents in the years before and after 1900. No records relating to the request were located in the registers.

The Department stated further that the Medical Inspection File for St Joseph's commenced in 1940. No medical records were located in respect of the applicant's father. The Department also stated that it would not hold a Primary Certificate for him because he would have left school before that qualification was introduced in 1929.

No pupil file was located in respect of the applicant's father. The Department stated that it does not possess the vast majority of pupil files created before 1960. It also provided this Office with supporting evidence to the effect that it appears that pupil files predating 1960 were destroyed between 1960 and 1976. With regard to children placed in industrial schools by the courts, the Department stated that approximately 27,000 pupil files are missing. It is unfortunate that the Department is not in a position to state with absolute certainty whether or not a pupil file was destroyed or whether it simply cannot be found. However, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires that the body in question take all reasonable steps to ascertain their whereabouts. Moreover, as set out above, the role of this Office is confined to determining whether all such reasonable steps have been taken.

It is unfortunate that no records have been located in relation to the applicant's request. Undoubtedly he will be disappointed with the outcome of this review. However, in the circumstances outlined above, I am satisfied that the Department's decision to refuse the applicant's request was justified on the ground that no 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 Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

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