FOI files Department of Justice said did not exist are located

Files that the Department of Justice said did not exist following a freedom of information request have been uncovered following an investigation by the Office of the Information Commissioner on foot of an appeal.

The judgement by information commissioner Peter Tyndall was made after his office reviewed the department's handling of a freedom of information request made by journalist Ken Foxe from the transparency group Right to Know.

In March 2017, Mr Foxe sought the release of all communications between then-minister for justice Frances Fitzgerald and a named individual and company. However, the department rejected his request as the files were not found to exist.

In his judgment, Mr Tyndall said Mr Foxe had “questioned whether a full and thorough search had been undertaken”.

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“He said he found it difficult to believe that within the department there are no records associated with his request,” said Mr Tyndall.

The department eventually identified 74 records which it had not previously considered. Some 68 of these were found to come under the scope of Mr Foxe’s request.

“It seems that in late January 2018, following concerns expressed by my investigative staff that further records could be held, the department searched archived email accounts,” said Mr Tyndall.

“My office identified 68 records that fall within the scope of the applicant’s request and advised the department of this.”

Mr Tyndall said the department had informed his office that it would not be appropriate to ask Ms Fitzgerald whether she had relevant records in her personal email accounts, despite her using them for official business.

“The department stated that it would not be appropriate to ask the former minister whether she has records in her personal email accounts,” he said.

FoI Act

“I cannot accept the department’s position that asking the former minister whether any relevant records may exist in her personal accounts or devices is going outside the scope of the FoI Act.

"I consider that it is reasonable and necessary for the department to enquire of the former minister whether she holds relevant records not filed or stored in official systems but relating to the functions and business of the Department of Justice and Equality.

“It appears from the records retrieved by the department and dealt with above that the former minister and some of her staff used Gmail addresses in correspondence with the company about official functions and activities of the department.

“To the extent that a Gmail or other account may have been used in this way, I do not accept that such content could reasonably be characterised as private. I do not believe that it is particularly relevant that the former minister is no longer working in the department.”

Mr Tyndall said the extent to which he could describe the content of the records was “limited”.

“However, I can say that some of the records located by the department were created in the context of speeches given by the former minister,” he said.

In response to Mr Tyndall’s findings, the Department of Justice said it would consider its response.

“The department has cooperated fully and promptly with the Office of the Information Commissioner throughout its consideration of this matter, including taking steps that ultimately led to the location of some relevant records,” it said.

“The department received notification of the information commissioner’s decision yesterday and the content of that decision will now be considered. Appropriate steps will be taken in response, including the release to the requester of any non-exempt documents falling within the scope of his request.”