Case Number: 170153

Whether the Council was justified in deciding to refuse access to further records relating to the applicant's mortgage on the ground that they do not exist or cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant received a mortgage from the Council in 2008 under the Shared Ownership Scheme. She surrendered the property to the Council in 2016 following which the Council informed her of an outstanding residual debt. The applicant submitted a request to the Council on 11 November 2016 for all records relating to her mortgage. On 5 December 2016, the Council informed her that it was granting access to all records.

On 8 December 2016, the applicant sought an internal review of that decision on the ground that she had not received all relevant records. Among other things, she referred specifically to the absence of internal correspondence regarding her case and to the absence of records for a specified seven year period.

On 5 January 2017, the Council issued its internal review decision, granting access to 44 further records it had identified as relevant to the applicant's request. Some information was redacted from two of the records released to the applicant. On 30 March 2017, the applicant sought a review by this Office of the Council's decision based on her view that further internal records exist that had not been released. She was also concerned that no records had been released relating to the Council's future plans in relation to the outstanding debt.

During the early stages of the review, the Council informed this Office that it had located 25 additional relevant records and had forwarded copies of those records to the applicant. However, the applicant informed this Office that she remained of the view that all of the records had not been released. In a subsequent submission, the Council provided this Office with information regarding the applicable records management policy and the searches conducted to locate all relevant records. Ms McCrory of this Office provided the applicant with details of those searches by email on 20 June 2017. She also informed the applicant of her view that the Council was justified in deciding that no further records exist or could be found. As the applicant has not indicated that she accepts Ms McCrory's views on the matter, 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 set out above. I have also had regard to the communications 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 its decision to refuse the applicant's request for further records relating to her mortgage apart from those already released under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

Preliminary Matters

The applicant has raised questions about the absence of certain types of records which she expects the Council should hold in relation to her case. This review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness of otherwise of the absence of certain records. However, it is incumbent on the Council to satisfy this Office that the records do not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Furthermore, it is important to note that this Office has no role in adjudicating on how the Council carries out its functions generally.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to record may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In a number of submissions to this Office, the Council provided details of the applicable records management policy and details of the searches conducted to locate the records sought by the applicant. It also provided an explanation as to why relevant records were provided to the applicant on three separate occasions. As outlined above, Ms McCrory of this Office has already provided the applicant with those details. Therefore, while I can confirm that I have had regard to those details, I do not propose to repeat them here.

The Council's processing of this request was most unsatisfactory. While I note the Council's contention that the staged release of records was due mostly to clerical error, it is clear that it did not conduct full and proper searches when it first considered her request. It is not surprising that the applicant might find it difficult to accept that she has now received all relevant records given the piecemeal release of records to date. It is also not surprising that she might expect the Council to have retained more records of their engagements, whether meetings or telephone conversations. However, as I have outlined above, this review cannot have regard to what records ought to exist.

The applicant expressed particular concern at the absence of records concerning the Council's future plans in connection with the outstanding debt. On this point, I note the Council's response that no further relevant records exist other than those released as it was accepted by senior management that applicant was not in a position to make payments to address the residual debt and no payment agreement was put in place.

While it is unfortunate that the Council did not conduct full and proper searches in the first instance, I am satisfied, having regard to the details of the totality of the searches conducted to date that it has, at this stage, taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the Council was justified in its decision to refuse the applicant's request for access to further relevant records on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. In making this finding, I expect that if further records covered by the applicant's request were to come to light at any stage, the Council would inform the applicant and consider them for release.

Finally, I would also like to take this opportunity to remind the Council of the requirements on FOI bodies when searching for records and to draw its attention to the adequacy of search case guidelines contained in this Office's procedures manual which is accessible at www.oic.ie. I would also draw its attention to the manual of the Central Policy Unit of the Department of Public Expenditure and Reform on dealing with FOI requests, which is available at www.foi.gov.ie.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator