Whether the Council was justified in effectively refusing a request for driving licence records under section 10(1)(a) of the FOI Act

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

Background

On 4 August 2011, the applicant's solicitor made an FOI request for "all information, records and data" held by the Council in respect of his client.

On 22 September 2011, the Council granted the applicant's request and released what it maintained were all the relevant records. However, on 20 October 2011, the applicant's solicitor sought an internal review of this decision on the basis that certain information may have been purged from the Council's files. In effect, he was arguing that further relevant records should exist. On 17 November 2011, the Council upheld its previous decision. The applicant's solicitors then sought a review by the Information Commissioner on 7 December 2011.

Mr Derek Charles, Investigator, outlined his preliminary views to the applicant's solicitor on 14 November 2012 and invited a response within two weeks. As no response has been received, I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to the correspondence between the Council and the applicant as detailed above; to correspondence between this Office and the applicant's solicitor, particularly Mr Charles' letter of 14 November 2012; and to correspondence between this Office and the Council. Finally, I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to assessing the adequacy of the Council's searches for particular records the applicant contends were purged from his file i.e. a computer printout /media article which the applicant claims to have received from the Council and the annotated version thereof which the applicant claims to have subsequently given to the Council on 5 July 2011.

Findings

While no section of the FOI Act has been cited, the Council appears to be relying on section 10(1)(a) of the Freedom of Information Act, which provides as follows:

"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 applicant's solicitor maintains that his client's application to renew his driving licence in July 2011 was refused by the Council because the National Vehicle and Driver file indicated that he had been disqualified from driving for twenty years. The applicant said, in disputing this with the Council, that he was given a sheet of paper, which he maintains was a computer printout/ media article describing a road traffic accident involving a person with the same name as his. The applicant has stated that he later returned to the Motor Taxation office and gave to a Council official a copy of the computer printout / media article concerned, which had been written upon by Gardaí with whom he had spoken. However, neither the original nor the annotated article where amongst the records released by the Council on 22 September 2011.

Mr Charles' letter of 14 November 2012 drew the applicant's attention to the fact that it is not normally this Office's function to search for records. He referred to relevant High Court precedent in this regard which I do not intend to repeat here.

Mr Charles' letter also set out the searches the Council said it conducted. In summary, the Council claims that it carried out a comprehensive search of all files relevant to the applications for Driving Licence renewals i.e.

• the National Vehicle and Driver File - an electronic database and
• the Driving Licence File - a paper file.

I understand that the National Vehicle and Driver database is operated by the Department of Transport based in Shannon. It is accessible by all local Motor Taxation Offices and contains information about the driver, his or her name, address, phone number, date of birth, date first licence was issued, date of current licence and categories covered to drive. It also contains records of warnings, endorsements, and penalty points. The Council confirmed this file does not normally contain any additional electronic documents, nor are documents scanned onto it.
I understand that the Driving Licence file is the hard copy (paper file) of the National Vehicle and Driver file, and is opened and held by the Motor Taxation Office in whose region an applicant resides. It contains a person's application for his or her first driving licence and each subsequent application, as well as the original of any Notice of Disqualification (NOD) received from the Courts Service. The Council has confirmed that it does not normally place media articles into an individual's Driving Licence file.

The Council stated that Kerry County Council, on receipt by it from the Courts Service of a NOD that it considered to relate to the applicant, generated a warning (by means of a flag) in relation to the applicant on the National Vehicle and Driver file database. I understand that Kerry County Council then sent the original NOD to Galway County Council Motor Taxation office, for the latter to place on the applicant's Driving Licence file. Galway County Council states that the NOD was not held in electronic form at any point nor was it scanned onto the applicant's National Vehicle and Driver file. The Council has also stated that, based on subsequent confirmation from An Garda Síochána that the NOD did not relate to the applicant, it removed the flag from his National Vehicle and Driver file. The Council says that a separate file was created to hold the NOD, once it was in dispute. I understand that the applicant has received copies of the file printouts in March 2012.

The Council maintains that the only print out given to the applicant in July 2011 was a copy of the NOD and that it did not give the applicant a computer printout /media article. It identified the Clerical Officer and the Staff Officer who dealt with the applicant in July 2011. According to the Council, the Clerical Officer said that he provided the applicant with a copy of the NOD, as there was no basis to indicate at that time that it related to anybody but the applicant. The Staff Officer has stated that she has no recollection of subsequently receiving an annotated version of the records at issue (or any documentation) from the applicant.

The Council says it has searched the applicant's Driving Licence file and the National Vehicle and Drivers database and cannot find the computer printout/ media article (annotated or otherwise). It also stated that the files of persons with a similar name, and of a similar age or address, to that of the applicant were searched without success.

In this case, it seems to me that the Council has identified and searched all files that may possibly hold records of relevance to the request. It has also identified and sought comment from the staff who dealt with the applicant in July 2011. Although unable to make a finding as to whether or not the records exist or what documents were provided to the applicant in July 2011, I consider that the Council has made all reasonable efforts to trace the records at issue. As was Mr Charles, I am satisfied that the records at issue either do not exist or cannot be found. In these circumstances, I find that the Council's decision to refuse access to further records under section 10(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal to release the records at issue.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator
24 December 2012