Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records that indicate who cashed two cheques that issued in the applicant's name in connection with land acquired under a Compulsory Acquisition Scheme on the ground that no relevant records exist

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 made a request to the Council on 27 June 2017 for information relating to two cheques issued in the applicant's name in connection with land acquired under a Compulsory Acquisition Scheme. On 18 July 2017, the Council granted access to a number of records it identified as coming within the scope of the request. In response to the request for information as to who cashed the cheques in question, it stated it did not hold any relevant records. However, it confirmed the dates upon which the cheques were cashed.

On 25 July 2017, the applicant sought an internal review of the Council's decision on the ground that the Council had not provided details of who cashed the cheques and for what reason. On 31 August 2017, the Council informed the applicant that it does not hold the records sought, but that it was making enquiries with the relevant bank outside of the FOI process. On 2 October 2017, the applicant sought a review by this Office of the Council's decision. 

During the course of the review, the Council provided the applicant with copies of the cashed cheques which it received from the bank. By letter dated 28 November 2017, Ms Hannon of this Office provided the applicant with details of the searches undertaken by the Council in an effort to locate relevant records and of its explanation as to why it does not hold the records sought. She informed the applicant of her view that the Council was justified in deciding that the records sought do not exist. Ms Hannon invited the applicant to make a further submission and also offered him an opportunity to withdraw his application for review. 

No further submissions were provided by the applicant. Therefore, I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council on the matter.   

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records that indicate who cashed two cheques that issued in the applicant's name in connection with land acquired under a Compulsory Acquisition Scheme.

Preliminary Matter

While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. 

Analysis and Findings

Section 15(1)(a)- Adequacy of Search
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office 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 decision and I 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 FOI body concluded that the steps taken to search for records were reasonable. 

As I have outlined above, Ms Hannon of this Office provided the applicant with details of the Council's account of the searches that were undertaken for the records. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision. In essence, the Council's position is that while its accounting system contains details of when the two cheques were cashed, it holds no details as to who cashed them. It stated that such information would be held by the relevant financial institution. It stated that in an effort to be of assistance to the applicant, it obtained copies of the cheques from the bank and provided those records to the applicant.

In view of the information provided by the Council relating to the searches undertaken and the explanation provided, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that it was justified in refusing access to the information sought under 15(1)(a) on the ground that no relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I 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