Case Number: 170169

Whether the Council was justified in deciding to refuse access to records relating to the applicant's housing application from 2009 and related rent supplement applications under section 15(1)(a) 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 submitted a request to the Council on 29 July 2016 for all records related to her housing application made in 2009, a copy of a Rent Supplement application signed and stamped by the Council in 2009, and any correspondence between a Community Welfare Officer (CWO) and the Council regarding the applicant from 2008 to present time. On 29 August 2016, the Council refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.

On 21 September 2016, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 11 April 2017, the applicant sought a review by this Office of the Council's decision.

During the course of this review, the Council provided this Office with information regarding its applicable record management policy and the searches conducted in an effort to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches by telephone and email on 24 May 2017. She also informed the applicant of her view that the Council was justified in deciding that the records sought did not exist or could not be found. As the applicant has indicated that she requires a formal decision on the matter, I consider it appropriate to conclude this review by means 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 solely concerned with whether the Council was justified in its decision to refuse the applicant's request for records relating to her housing application from 2009 and related documents concerning rent supplement on the ground that they do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records 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.

As I have outlined above, Ms McCrory of this Office has provided the applicant with details of the searches it undertook in an effort to locate relevant records. Therefore, while I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of the review.

In summary, the Council stated that it conducted several searches on all relevant electronic databases and systems. According to the Council, searches of physical files could not be conducted as the Council had no reference number with which to search these files, and they are organised numerically. It stated that the only files related to the applicant that were located concerned her application for housing in 1994. It further stated that no records relating to an application made by the applicant in 2009 were located, including any record of ever receiving, logging or processing such an application by the Council.

In relation to the Rent Supplement application form of 21 September 2009, the Council stated that it does not retain copies of Rent Supplement forms that it signs and stamps for persons applying to the Department of Social Protection. It stated that the Council only retains those documents which relate to a housing application or other Council matters. According to the Council, it is likely that this particular record the applicant is seeking would be held by the Department of Social Protection if it exists, as opposed to the Council.

The Council further stated that any records containing correspondence between a CWO and the Council would form part of a housing application file. According to the Council, there would not usually be any ongoing correspondence with a CWO, but that if there were, any such records would be located in the course of the searches outlined above for the housing application. It stated that no records could be located.

I note that the applicant provided this office with a copy of a rent supplement application form from 2009 but that the relevant part of the form that should be completed by the relevant housing authority is blank. While I have no reason to doubt the applicant's recollection of her engagements with the Council, this form does not provide a basis for suggesting that the Council ever held relevant records. Having regard to the details of the searches conducted by the Council as outlined above, I am satisfied that that it has 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 the records sought on the ground that they do not exist or cannot be found.

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