Whether the Court was justified in deciding to refuse access to additional records relating to two hearings of the Court under section 15(1)(a) on the ground that no further relevant records exist or can be found apart from the records already released

03/09/2018

Background

This review has its background in an industrial relations matter involving the applicant which came before the Court in 2016 and 2017. It appears that the case before the Court was withdrawn in 2016 and the parties agreed to process the matter through the normal grievance procedures. The appeal was re-submitted in 2017 and was subsequently withdrawn by the applicant.
On 12 January 2018 the applicant submitted a request to the Court for all records relating to two hearings that took place in the Court in 2016 and 2017. The Court issued its decision on 7 February 2018 in which it stated that it had decided to grant the request. The applicant sought an internal review of that decision on the ground that he had not received all relevant records. On 13 March 2018 the Court affirmed its original decision. On 2 July 2018, the applicant sought a review by this Office of the Court's decision.
During the course of the review, the Court provided this Office with the details of the records management policies and the searches carried out to locate all relevant records. I also note that the Court released two file cover notes to the applicant during the course of this review to ensure the applicant had received all records in its possession. On 10 August 2018, Ms McCrory of this Office provided the applicant with details of the searches undertaken and of the Court's explanation as to why it holds no further relevant records. She informed the applicant of her view that the Court was justified in refusing access to additional records on the ground that no further relevant records exist or can be found and she invited the applicant to make a further submission on the matter.
As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision based on the information now before me. In conducting my review, I have had regard to the correspondence between the Court and the applicant as outlined above and to correspondence between this Office and both the Court and the applicant on the matter.

Scope of Review

This review is solely concerned with whether the Court was justified in deciding to refuse access to records related to two hearings of the Court under section 15(1)(a) on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of 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 such cases includes the steps actually taken to search for records. It also comprises 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, this Office has already provided the applicant with details of the Court's submission relating to its records management policies and the searches conducted to locate the records sought by the applicant. Therefore, I do not propose to repeat them in full here.
In essence, the applicant argued that he had not received records which would indicate who withdrew the case in 2016 and that he had not received records of the directives given by the Chairperson of the Court at the hearings or the minutes of the hearings.

On the matter of the withdrawal of the case in 2016, the Court sought the views of the Chairperson on the matter who stated that the Court asked both sides at the start of the hearing why the matter was not dealt with through the well established procedures for the processing of grievances in the applicant's employment and that both sides informed the Court that they were willing to have the matter dealt with through those procedures. He stated that on that basis, the Union withdrew the case. The Court stated that no records that detail who withdrew the case exist or ever existed.

On the matter of the existence of other relevant records, the Court stated that the hearings were held orally and that no minutes were taken of these hearings. It stated that the private nature of the hearings meant that only certain types of records would be created and retained on file, such as the appeal form or submissions for the parties. It stated that while a secretary would sit in on a hearing and take notes, such notes are used simply to assist the secretary in managing a case and that they are routinely destroyed and do not form part of the casefile.

It is the Court's position that all relevant records have been released and that no further records exist. Having considered the Court's description of the policies in place, of the searches undertaken, and of the reasons why the specific records sought by the applicant do not exist, I am satisfied that the Court has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. I find, therefore, that the Court was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Court to refuse access to further records relevant to the applicant's request under section 15(1)(a) of the FOI Act.

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