Case Number: 160573

Whether the Council was justified in refusing access to additional records relating to the preparation and adoption of the "Mahon Local Area Plan" and "Variation No. 11" of the Plan on the grounds that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts

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

I should state at the outset that this review has been 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed. The review has its background in a rather drawn out interaction between the applicant and the Council concerning an FOI request the applicant made in September 2014 and it follows a previous decision of this Office on the matter.

The applicant's request was for access to "Information held by the Council relevant to the preparation and adoption of the Mahon LAP [Local Area Plan] and Variation No. 11". In its original decision, the Council granted access to all but one of the 122 records it identified as coming within the scope of the request. Following a number of engagements between the parties, the Council subsequently informed the applicant that it had interpreted the request to cover the main records involved and, had the request been interpreted as the applicant suggested, the request would have been refused under section 10(1)(c) as a voluminous request.

In a decision dated 15 February 2016, I found that the Council was not entitled to rely upon section 10(1)(c) as a justification for refusing access to additional records as it had not first assisted or offered to assist the applicant in amending the request so that it would no longer fall to be refused as a voluminous request, as required under section 10(2) of the Act. I annulled the Council's decision and directed it to carry out a fresh decision-making process on the request.

Following that decision, the Council engaged with the applicant to allow her an opportunity to narrow the scope of the request. On 22 September 2016, the Council wrote to the applicant and described the scope of the request, as agreed at a meeting of 12 September 2016, as follows:

• "Clarification of search range of 4,602 emails in relation to original FOI [request]"
• "Minutes of meetings and emails between [four named individuals] from 1st March 2012 - 30th June 2012"
• "Minutes or records in relation to a briefing with the City Manager"

In its decision of 30 September 2016, in response to the first part of the agreed scope, the Council stated that it could "confirm the search range of January 2008 to the 24th March 2014". In relation to the second and third parts, it refused access to certain records on the ground that they do not exist or cannot be found. It also referred to a ten-page schedule of records that were released, with the exception of one email that was refused under section 27(1)(b) on the ground of commercial sensitivity.

In her request for internal review dated 28 October 2016, the applicant suggested that not all relevant emails were released and that she expected to receive more emails from three of the four named individuals. She challenged the Council's decision that certain records relating to meetings cannot be found or do not exist and she provided details of meetings she believed to have taken place.

In its internal review decision of 22 November 2016, the Council affirmed its original decision on the ground that all relevant records had been released and that no further relevant records exist or can be found. On 20 December 2016, the applicant sought a review by this Office of that decision.

Subsequently, the applicant sought a review by this Office of the Council's decision to refuse access to additional records on the basis of section 10(1)(a). In her letter of 20 December 2016, she argued that the records released to her indicated that at least six meetings had taken place and at least one of those meetings was with the City Manager. She added that that some attachments to the emails released were missing.

I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the parties as outlined above and to the correspondence between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in deciding that no further records coming within the scope of the applicant's request exist or can be found.

Analysis and Findings

Section 10(1)(a)
Section 10(1)(a) of the FOI Act provides that a request 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. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In her submission to this Office, the applicant argued that since she first made her request, the Council had not provided any records regarding meetings held on the subject of her request, namely the Mahon Local Area Plan and a specified variation. She argued that the emails released to her clearly indicate that at least six meetings took place and that a report/presentation was made to the City Manager.

The Council, in its submission, provided details of the searches it conducted for relevant records. I note that the full details of those searches have already been provided to the applicant. The Council stated that having reached an agreement with the applicant as to the scope of her request, its ICT department conducted an electronic search centrally in accordance with the agreed scope, including, but not limited to, the email accounts of the parties identified in the agreed scope. It stated that the relevant parties were informed that a search of their email accounts from 1 March 2012 to 30 June 2012 would be carried out and that the individuals were requested to search their local hard copy folders, their local digital folders, and related network server shared digital folders for relevant documents.

In relation to the email search conducted, the Council stated that it maintains an on-site digital backup archive, using the MailMeter software, of all emails sent and received and that a MailMeter search and retrieval was carried out by the ICT Unit of the email accounts of the four named individuals for all mail items (i) from each person during the specified dates, (ii) between pairs during the specified dates and (iii) with reference to Jacobs Island (a specific area included in the Mahon Local Area Plan).

There appears to have been a misunderstanding between the parties as to the scope of the first part of the request. Based on the records before me, I understand that part to refer to 4,602 email records identified by the Council during its previous handling of the request. The Council has submitted that the parties agreed to reconsider these records for release in the present case, confining searches to items referring to Jacobs Island, for the period outlined. The applicant disputes the Council's position on this point. On foot of enquiries by this Office, the Council confirmed that this limitation was not agreed with the applicant in writing.

Furthermore, the Council has stated that the Jacobs Island "filter" was applied in this case following the identification of some 25,065 emails of the four individuals named at the second part of the request. This is a significant volume of potentially relevant records. It is worth noting that a public body may rely upon section 10(1)(c) in refusing to grant a request based on the volume of records. However, the Council could not rely on that section in this case because, having engaged with the applicant in an effort to amend the request so that it would no longer fall to be refused as voluminous (as required under section 10(2)), the Council did not rely on section 10(1)(c) in refusing access.

The parties' confusion regarding the first part of the request seems to have resulted from their agreement to proceed on the basis of a scope that is absent of particulars. The applicant is not without responsibility in this regard. Under section 7(1)(b) of the FOI Act, a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. I do not consider that the applicant has fulfilled this requirement in respect of this part of the request. The wording of this part provides no specification of records being sought, nor any indication as to what the search in question would relate. From the records before me, it appears that the applicant did not seek to clarify this wording following receipt of the agreed scope in writing. Given the lack of clarity as to what was required of the Council in responding to the first part of the request, I do not consider it practicable to adjudicate on the adequacy of the Council's decision in that regard. In my view, the appropriate course of action is to annul the Council's decision on the first part of the request and direct the Council to conduct a fresh decision-making process in respect of that part.

In relation to the records sought of the four named individuals, the applicant has contended that additional emails sent to these individuals by other persons ought to have been located. However, the agreed scope refers to emails between those individuals i.e. email correspondence involving two or more of those individuals only. Therefore, such additional emails would not come within the scope of the request.

The Council has also stated that records of minutes sought were not located in its searches. I find no basis for disputing that statement. The applicant has also argued that such records ought to exist. However, the fact that one might expect such records to have existed and to have been retained, and that their absence might suggest inadequate record keeping practices, is not an issue for review. It is not the function of the Commissioner to adjudicate on how public bodies carry out their functions generally. The FOI Act provides for a right of access only to records that exist at the time of the request. It does not provide for a right of access to records it is considered ought to exist, even if it is acknowledged that such records ought to exist.

Moreover, section 10(1)(a) does not require absolute certainty as to the existence or location of records because situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

In the circumstances, with the exception of the first part of the request, I am satisfied that the Council has conducted reasonable searches to locate the records sought and that no additional records exist or can be found. I find accordingly.

The effect of my findings is that the Council should consider the first part of the request afresh and make a new, first instance, decision in respect of that part. In doing so, I would suggest that it confirm with the applicant, in writing, the precise nature of records sought and the scope of such a request. I would also remind the Council of the requirements of section 10(2) where the application of section 10(1)(c) is under consideration. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council's new decision. During the course of the decision-making process, both parties must comply with the statutory requirements of the FOI Act. For the avoidance of doubt, this new decision-making process should be carried out pursuant to the provisions of the Freedom of Information Acts 1997 and 2003.

Decision

Having carried out a review under section 34(2) of the Act, I hereby annul the decision of the Council to refuse the first part of the request under section 10(1)(a). I direct the Council to undertake a fresh decision-making process on that part of the request. I affirm the decision of the Council to refuse the remainder of the request under section 10(1)(a).

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