Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records concerning the decision to designate Blackwater Bank and Hempton’s Turbot Bank as Special Areas of Conservation on the basis that no further relevant records exist or can be found

13 January 2022

 

Background

Natura 2000 is a European network of important ecological sites. The EU Habitats Directive placed an obligation on Member States of the EU to establish the Natura 2000 network and the network is made up of Special Protection Areas (SPAs), established under the EU Birds Directive (79/409/EEC), and Special Areas of Conservation (SACs), established under the Habitats Directive itself.  

On 17 April 2021, the applicant submitted a request to the Department for records relating to the designation of sites in Ireland as 'sandbanks slightly covered by seawater all the time', (Natura 2000 site, EU Annexe 1 habitat type (code 1110)). On 22 April, a refined version of the request was submitted to the Department wherein the applicant sought records created from 2007 to 2015 inclusive in relation to the decision-making process by which it was decided to designate the Blackwater Bank and Hempton's Turbot Bank, and not to designate other East Coast sandbanks, as SACs. The applicant specified that the records should include:

• All inter-departmental and all intra-departmental communications, and communications with all other organisations, associations or agencies and with the European Commission;
• Information on the scientific and other factors that were taken into account when making the decisions to designate;
• Other sites that were considered for designation and why were these specific sites selected for designation over and above others;
• Departments/Agencies that were consulted/became involved in the decision-making process in relation to these designations.

On 20 May 2021, the Department decided to grant the request and it released five records it had identified as coming within the scope of the request. The decision indicated that due to Covid-19 restrictions, searches had been confined to electronic records. On 20 June 2021, the applicant sought an internal review of the Department’s decision. She referred to a record released to her by the National Parks and Wildlife Service (NPWS) on foot of a separate request for information, which contained references to meetings and communications between the Department and NPWS in relation to the sandbank designations in question. The applicant asked the Department to release any records held by it in this regard, as well as all other information and communications not provided to date.

On 9 July 2021, the Department issued its internal review decision. While it stated that it affirmed the original decision, it also stated that following further searches, more records had come to light. The revised Schedule of Records provided listed 15 records in total, including the original five, and all 15 records were released to the applicant in full. 

The applicant sought a review by this Office of the Department’s decision on 30 August 2021. She pointed to information contained within records that were released that she submitted suggested the existence of further records. In the course of this review, the Department identified a further 32 records relevant to the applicant’s request which it released to her. On 15 December 2021, the Investigator notified the applicant of the details of the Department’s submissions on the matter, including details of the searches undertaken to locate relevant records. She informed the applicant of her view that the Department had, at that stage, carried out all reasonable steps to ascertain the whereabouts of relevant records and that it was now justified in deciding that no further relevant electronic records exist or can be found. She invited the applicant to withdraw her application for review or to make a further submission on the matter. As I have heard nothing further from the applicant, I have decided to conclude this review by way of a formal, binding decision.

In carrying out the review, I have had regard to the submissions made by the applicant and by the Department, and to the correspondence between the parties as outlined above. I have also had regard to the contents of the records that were released. 

 

Scope of the Review

While the Department has acknowledged that the initial searches carried out on foot of the request were incomplete, its position is that it has, at this stage, taken all reasonable steps to locate relevant electronic records coming within the scope of the applicant’s request and that no further relevant records exist or can be found.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records apart from the 47 records already located and released, on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
 

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.  First, in her submissions to this Office the applicant raised a number of questions arising from the content of some of the records that were released and pertaining to the designation process for the SACs. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review.  The Courts have endorsed this approach. As such, I have based my decision on the issues that remain to be determined, and not based solely on the decision originally made by the Department. This means that I have taken account of the fact that a number of records uncovered during the course of the review have, at this stage, been released to the applicant.
 

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. The Commissioner's 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. 

Before I consider the searches undertaken by the Department for electronic records, I wish to address the fact that it conducted no searches for hard copy records. The Department said that all searches carried out to date have been of electronic records due to Covid-19 restrictions. It fully accepts that it may hold further relevant records in physical files, but it said that it has not yet been possible for physical searches to be carried out by the various Marine divisions for any other relevant records, in circumstances where the prevailing public health advice is for people to continue to work at home, where possible.

I note that the applicant has no raised no specific concerns about the Department’s approach. Moreover, given the current climate and the ongoing difficulties presented by the Covid-19 pandemic, I do not consider that the Department’s failure to search for hard-copy records provides, of itself, an appropriate basis for finding that it did not take all reasonable steps to locate all relevant records in this case. All public bodies continue to face significant challenges in processing FOI requests as a result of the exceptional working arrangements which remain in force to ensure compliance with Government advice relating to the pandemic. Practices such as remote working continue to cause significant difficulties for public bodies in accessing records held in hard copy only. While I expect all public bodies to have made arrangements over the course of the past year to ensure, to the greatest extent possible, continuity of service across all of its functions, including its functions relating to the processing of FOI requests, the matter of obtaining access to records held in hard-copy only remains an ongoing issue in circumstances where current advice is to continue to work remotely where possible.

Nevertheless, as the public health situation continues to evolve, I expect that when it is in a position to do so, the Department will conduct a detailed search of its physical records to determine if it holds any records of relevance to the applicant’s request. I expect the Department to notify the applicant when it is in a position to commence those searches and to inform her of the outcome of those searches as quickly as is reasonably possible.

On the matter of the searches carried out in an effort to locate relevant electronic records, the Department explained its role in the designation of Natura 2000 sites. It said the NPWS is responsible for the designation of conservation sites, including Natura 2000 sites, in Ireland, and that the Department’s role is to manage sea-fisheries to ensure that significant impacts on designated habitats and species in such sites are avoided. It said the NPWS consults with the Department, and with its Marine Divisions in particular, on matters relating to Natura 2000 sites. In this context, the Department’s position is that most records relating to the designation of Natura 2000 sites would be held by the NPWS rather than by it.

As I have outlined above, the Department provided this Office with an account of the searches undertaken for records relevant to the applicant’s request and those details were forwarded to the applicant by the Investigator. In summary, in its initial submission the Department said it carried out electronic searches in five separate Divisions (Marine Programmes Division, Marine Engineering Division, Aquaculture and Foreshore Management Division, Sea-Fisheries Administration Division and Sea-Fisheries and Management Division) and in the office of the relevant Assistant Secretary. In her application for review by this Office, the applicant had referred to a specific meeting of the Marine Coordination Group on a particular date for which she believed the Department should hold records relevant to her request.

In preparing its submissions for this Office, the Department carried out a targeted search of folders relating to meetings of the Marine Coordination Group and it identified three relevant records. These records, which were added to the Schedule as records 16, 17 and 18, were released to the applicant, one in full and two in part. Records 16 and 17, comprising an agenda for the meeting and summary notes of the meeting, had some information redacted from them which the Department said was not relevant to the FOI request. The applicant was not happy with this and stated that the records should have been released in full. Having reviewed the content of the records at issue, I am satisfied that the redacted information is completely unrelated to the SACs and is outside the scope of the FOI request. 

In response to further queries from the Investigator who had sought more detail on exactly how the searches were carried out, including the search terms used, the Department carried out another series of searches and located a further 29 records, scheduled as records 19 to 47, all of which were released to the applicant in full. Details of these additional searches were provided to the applicant by the Investigator. The Department stated that the failure to identify these records as part of the earlier searches was regretted. 

It is very unfortunate that the majority of the records were located and released only during the course of this review and that they were not located when the FOI request was initially processed. Indeed, it is understandable that the applicant would have concerns about whether the Department has, at this stage, carried out all reasonable steps to locate all relevant records in such circumstances. The Department has been subject to FOI legislation since its original introduction in 1998 and as such, I would expect it to have established procedures in place to ensure that all reasonable steps are taken to locate all relevant records coming within the scope of requests when processing those requests.

The Department is also no doubt aware of the guidance this Office has published on its website in respect of section 15(1)(a). Among other things, the guidance describes the steps that this Office would expect public bodies to have taken when processing requests. The Guidance also refers to a number of recommendations this Office made arising out of an investigation into the operation of the equivalent provision of the FOI Acts 1997 & 2003, namely;

• Every public body should draw up and implement a comprehensive records management policy as a priority.
• There should be consistency in searches for records by public bodies. A checklist should be used for this purpose. Templates of how/where searches are to be conducted should be prepared and made available to all staff, with steps taken to ensure that the procedures in the templates are adhered to. Details of searches conducted should be noted and retained on the FOI decision making file. 

Nevertheless, the question I must consider in this case is whether the Department has, at this stage, taken all reasonable steps to locate all relevant records. Having carefully examined the Department’s submissions, it seems to me that it has. Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records apart from the 47 records already located and released, on the basis 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 the decision of the Department to refuse access, under section 15(1)(a) of the FOI Act, to any further relevant records apart from the 47 records already located and released, on the basis that no further 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