Whether the Council was justified in its decision to refuse access to further records relating to the applicant's dealings with the Council's Housing Section under section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

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

Background

On 20 September 2014 the applicant made a request to the Council for all records created within the Housing section of the Council relating to him, for the period 1 October 2013 to 20 February 2014. On 10 November 2014 the Council released 17 records in total to the applicant, 15 records in full, with two records subject to redactions under section 28(1) of the Act, to protect the personal information of third parties. The applicant, on 12 November 2014, appealed the decision of the Council, as he was not satisfied that all relevant records had been released to him. The applicant, in his request for internal review, identified nine records which he believed should have been released to him as a result of his FOI request. On 22 December 2014 the Council issued an internal review affirming its original decision, and indicated that there were no outstanding records relating to the applicant's request. The applicant, on 22 December 2014, applied to this Office for a review of the Council's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 30 April 2015 with details of the searches carried out by the Council to locate the records within the scope of his request. In his email to the applicant, he indicated that, in his view, the decision of the Council to refuse to grant access to the records he had identified at internal review and further described in a submission to this Office of 4 February was justified. Mr Foley further invited the applicant to make a submission to this Office if he disagreed with this view. The applicant, in correspondence dated 3 May 2015 to this Office, indicated that he was not satisfied with the record keeping practices of the Council, and stated that he wished this Office to proceed to a final decision in this review. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Council and the applicant as set out above, including the records released to the applicant on 10 November 2014. I have had regard to communications between this Office and the applicant, and to communications between this Office and the Council. Finally, I have had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing access to further records identified by the applicant, under section 10(1)(a) of the Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

The applicant contends that certain records of meetings held between employees of the Council and the applicant should exist and have been retained on his file. This Office is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist.

Furthermore, this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

Analysis and Findings

The Council's position is that the records identified by the applicant at internal review do not exist or cannot be found. Accordingly, section 10(1)(a) of the FOI Act is relevant.

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

This Office'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 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. 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, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

In submissions to this Office dated 20 April and 29 April 2015 the Council provided details of the searches it undertook in an effort to locate the records coming within the scope of the applicant's request. As I have outlined above, Mr Foley of this Office has provided the applicant with details of those searches. Therefore, while I do no not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

The Council acknowledged that one of the nine records identified by the applicant did exist but cannot be located. The Council stated that it is unable to find any record of an email sent by the applicant and contends that the remaining records do not exist. Accordingly, the position of the Council is that it cannot find any further records relevant to the applicant's FOI request. While the applicant may not be satisfied with the Council's responses, he has provided no supporting evidence to suggest that other records do, indeed, exist. Having reviewed the steps taken by the Council to locate the records sought, I am satisfied that the Council has taken all reasonable steps to locate any further records. I find, therefore, that the Council's decision to refuse the applicant's request 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 decision of the Council to refuse access to further records sought by the applicant under the provisions of section 10(1)(a) of the FOI Act, on the basis that they do not exist or cannot be found.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator