Case 090151. The Senior Investigator found that the Council is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to the records on the basis that such records do not exist or cannot be found.

Case Summary

The Senior Investigator found that the Council is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to the records on the basis that such records do not exist or cannot be found.

Date of Decision: 07.12.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

On 16 April, 2009 the Applicant made an FOI request to Dublin City Council for access to a copy of an occurrence book record relating to an ambulance call-out to an address at O'Connell Street, Dublin on the 23 June,1987. The Council issued a decision on 14 May, 2009 refusing access to the requested record under Section 10(1)(a) of the FOI Acts, on the basis that no such record exists. On 15 May, 2009 the Applicant applied to the Council for internal review. On 4 June, 2009 the internal review decision was issued by the Council and upheld the original decision. The Applicant then applied to this Office, on 6 June, 2009, for a review of the Council's decision. The application for review was accepted by this Office on 7 July, 2009 following receipt of the appropriate fee.

In conducting this review, I have had regard to the submissions of the Council as well as those of the Applicant, the provisions of the FOI Acts, and the contents of the preliminary views letter, dated 25 November, 2009, sent to the Applicant by Ms. Anne O'Reilly, Investigator, of this Office, to which the Applicant responded on 3 December, 2009. I consider that this case should now be brought to a close by means of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Scope of Review

This review is concerned solely with the question of whether the Council is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to an occurrence book record relating to an ambulance call-out to an address at O'Connell Street, Dublin on the 23 June, 1987, on the basis that it does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I note, for the sake of clarity, that this review will make no finding on any issue regarding the circumstances of the alleged incident described by the applicant; my remit is confined to adjudicating on the right of access to the particular record.

Submissions

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Findings

Section 10(1)(a)

The Council relied on section 10(1)(a) of the FOI Act to refuse access to the record. This section provides that:

"A head to whom a request under section 7 is made may refuse to grant the request if

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ..."

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner 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. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body and the basis on which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

The Information Commissioner, in implementing the terms of the FOI Act is concerned primarily with ensuring public access to extant records in accordance with the provisions of the Act. In her preliminary views letter, Ms. O'Reilly set out in detail the steps taken by the Council in its attempts to locate the record which was sought by the Applicant, including the contacts made with staff involved and the areas searched. The Applicant was also provided with general background information in relation to how ambulances are dispatched to an incident and details of the Council's record keeping practices, as supplied to this Office by the Council in the course of this review. I do not intend to repeat the contents of the preliminary views letter but its contents are relevant for the purposes of this decision.

I note that, in his letter of 6 June 2009, the Applicant stated that the fireman who attended in response to the call out on 23 June 1987, subsequently, on 02 December, 2008, informed the Applicant that he had ascertained that the record in question existed. The Applicant therefore alleges that if the record no longer exists, it must have "gone missing since December, 2008".

As the Applicant has been advised, the fireman in question, in a written statement to this Office, has stated that he has no recollection of the specific call-out in 1987 and he further stated that "I refute .... (the Applicant's) allegation on 2/12/08 that I said a record existed of this case."

It seems that there is a direct conflict of evidence regarding the exchange that took place between the Applicant and the fireman in question on 2 December, 2008. In these circumstances, it is not possible for this Office to make a determination as to whose version of events is correct.

Having reviewed the steps that the Council says it has taken to search for the record, its record keeping practices, including its stated practice of destroying paper based records such as incident log books after 7 years, and its contacts with relevant officials and others to locate the record sought, I am satisfied that it is reasonable to conclude that the Council is justified in its position requested record does not exist or cannot be found. I have no reason to believe that the Council would deny the existence of record if it could now be found. I find, therefore, that the Council's decision to refuse the Applicant's request under section 10(1)(a) of the FOI Act is justified.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Council in this case.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

07 December 2009