Case 000122. Requester posed a number of questions as to the housing policy of Galway Corporation - whether request, phrased as a series of questions is a request for specific records - whether records exist which contain the information raised in the questions - section 10(1)(a)

Case Summary

Facts

The requester asked a number of questions relating to Galway Corporation's housing policy. In respect of one of the questions, the Corporation said that no record exists which would supply the information sought, and refused this part of the request on the grounds of section 10(1)(a) of the FOI Act.

Decision

The Commissioner's authorised officer commented that it was not clear that the request, phrased as a series of questions, was a request for specific records rather than simply a request for information. He referred to a previous decision where the Commissioner had said to the same requester that the FOI Act does not confer a general right of access to information; rather it confers a right of access to records. The authorised officer commented that the FOI Act was unlikely to be a satisfactory mechanism for acquiring information where that information is not contained in a record.

He also said that the FOI Act does not provide a right of access to records which ought to exist. The requester did not present any specific evidence to support the view that a record, of the type he was seeking, was actually held by the Corporation. The authorised officer said he had no basis for refusing to accept the Corporation's contention that a record, of the type being sought, did not exist, and he accepted that the Corporation's decision was made in accordance with section 10(1)(a) of the FOI Act.

Date of Decision: 12.12.2000

Our Reference: 000122

12.12.2000

name of staff member of Galway Simon Community

Dear (name of staff member of Galway Simon Community),

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of Galway Corporation on your FOI request of 3 February 2000 (detailed below). I have been authorised by the Information Commissioner to carry out this review on his behalf. I have now completed my review of the Corporation's decision. In carrying out that review, I have had regard both to your submissions and to the submissions of the Corporation.

Background

In your request you sought documents relating to the following questions:

" 1. What particular roles and functions have been devised under the draft scheme for SPC by Galway Corporation for the housing SPC?
2. What is the role of the City Manager in relation to housing policy administration.
3. What is the overlap between the role and functions of the housing SPC and the administration of housing within the local authority."

The decision made by Galway Corporation was to refuse your request. This decision was explained in the Corporation's letter of 18 February 2000. The information you requested in Question 1 was said to have been supplied to you in the Corporation's decision dated 12 January in respect of an earlier FOI request (Ref. 65/99). You were advised that other information concerning the matter was publicly available and therefore not a record to which the FOI Act applies. You were also advised, in relation to Question 2 of your request, that the information was publicly available and it was noted that you had been advised about the specific records involved in answer to your FOI request of 2 February (Ref. 3/00). In cases where records are publicly available, such records do not come within the scope of the FOI Act, in accordance with section 46(2) of the Act.

The Corporation said, in relation to Question 3 of your request, that no record exists specifying the overlap between the role and functions of the housing SPC and the administration of housing within the local authority and this part of your request was refused under section 10(1)(a) of the Act. The Corporation pointed out that the respective roles and functions of the housing SPC and the administration of housing can be determined from the records released to you under previous requests. The Corporation also suggested that the information could more appropriately be given outside the Freedom of Information Act and the decision-maker in your case offered to meet with you to discuss the matter.

You appealed the decision only in relation to Question 3 and in your appeal posed the question "Can it be that there are no documents, policies or guidelines or other information in relation to these roles?" The Corporation's response to your appeal was that no record outlining the overlap specified by you exists and your request was accordingly refused under section 10(1)(a) of the Act. You were reminded that the records held by the Corporation regarding the SPCs were forwarded to you on 12 January 2000 under request 65/99.

Scope of Review

My review is concerned solely with the question of whether the Board's decision, in relation to part 3 of your request, is in accordance with the provisions of the FOI Act.

Findings

The sections of the FOI Act which I consider relevant to your review are section 2(1) [for the definition of "record"], section 6 [right of access to records], section 7(1)(b) [particulars to be given when requesting a record] and section 10(1)(a) [refusal of record on administrative grounds]. Copies of these sections were provided with Ms. Doyle's letter to you of 14 November 2000 in relation to another of your applications to this Office.

Section 6 of the Act provides that, subject to the provisions of the Act, every person has a right of access to any record held by a public body. Section 7(1)(b) requires that a request made under the Act shall contain "sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps." It is clear, therefore, that the FOI Act provides for access to identifiable records which are known to exist or for which there is some evidence to indicate that they exist.

It is not entirely clear that your request, phrased as it is in a series of questions, is a request for specific records rather than simply a request for information . As the Information Commissioner commented in his letter to you of 19 December (Our Ref. Case No. 99251), the FOI Act does not confer a general right of access to information; rather it confers a right of access to records. If the information required by an individual is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information.

The FOI Act provides a mechanism for gaining access to records held by public bodies. Requests should be framed in such a way as to enable the identification of the records sought. Where a request is made in the form of a series of questions, public bodies will generally attempt to identify records which may answer the questions asked. However, the Act does not provide for a right of access to records which ought to exist. Section 10(1)(a) of the Act provides that a head may refuse to grant a request if,
"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". Accordingly, the key question to be decided here is whether a record (or records) exists which contains the information raised in your question.

It is the Corporation's position that a specific record containing the information sought by you does not exist and your request was refused on that basis. The Corporation outlined where information on the roles and functions of both the local authority and the SPC, in relation to housing, might be found. It said that there is no specific record in existence which describes the overlap between the SPC and the administration of housing within the local authority. I note you have not presented any specific evidence to support the view that a record, of the type your are seeking, is actually held by Galway Corporation.

In the circumstances, I can see no basis for refusing to accept the Corporation's contention that a record, of the type sought by you, does not exist. Accordingly, I accept that the Corporation's decision was made in accordance with section 10(1)(a) of the Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of Galway Corporation to refuse your request of 3 February 2000.

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 of this letter.

Yours sincerely

Fintan Butler
Senior Investigator