X and Irish Human Rights and Equality Commission (Irish Human Rights and Equality Commission)

In a request dated 26 May 2021, an anonymous applicant emailed a request to IHREC for "all correspondences, to and from the IHREC (and to include internal emails/memos/minutes discussing same) regarding how the equality legislation should be applied where service providers are seeking to provide services for women while excluding transwomen from that service (or seeking to provide services for men while excluding transmen from that service)".

On 9 June 2021, IHREC refused the request under section 15(1)(a) of the Act on the ground that no relevant records could be found. The applicant sought an internal review of that decision, following which IHREC affirmed its refusal of the request. On 22 November 2021, the applicant sought a review of IHREC's decision. Subsequently, the applicant provided links to comments made on an online forum as evidence of the existence of relevant records.

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 submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

This review is concerned solely with whether IHREC was justified in refusing access, under section 15(1)(a) of the Act, to any records coming within the scope of the applicant's request as set out above.

Section 15(1)(a) of the FOI 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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.