Whether TUSLA was justified in refusing the applicant's request for records of a telephone call she made to TUSLA under section 15(1)(a) of the FOI Act on the ground that they do not exist
15 April 2019
Background
In a request dated 10 April 2018 the applicant sought access to the notes taken of a phone call she made to TUSLA on a specified date when she outlined her concerns for the welfare of a number of identified children. On 15 May 2018 TUSLA refused the request under section 37 of the FOI Act on the basis that the information sought comprises personal information relating to third parties. Following a request for internal review, TUSLA affirmed its original decision. On 21 August 2018 the applicant sought a review by this Office of TUSLA's decision.
During the course of the review, TUSLA revised its position and stated it could not find any records of the phone call in question. It therefore relied on section 15(1)(a) of the FOI Act in refusing the applicant-™s request, on the ground that records sought could not be found after all reasonable attempts to locate them. TUSLA released a number of records to the applicant during the course of the review which outlined that the applicants concerns had been received, but the applicant stated that the records released did not fulfil her request.
This Office provided the applicant with details of TUSLA's submissions regarding the searches it conducted in response to her request. Ms Whelan of this Office informed the applicant of her view that TUSLA had carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records and that it was justified in refusing the request on the ground that the records sought do not exist or cannot be found. She invited the applicant to make a further submission on the matter. The applicant made a further submission. I have now decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and TUSLA as set out above and to the communications between this Office and both TUSLA and the applicant on the matter.
Scope of Review
This review is concerned solely with the question of whether TUSLA was justified in refusing access, under section 15(1)(a), to records of a telephone call made by the applicant to TUSLA on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Analysis and Findings
Section 15(1)(a) of the FOI Act 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.
In its submissions to this Office, TUSLA stated that the usual procedure in circumstances where concerns for children are reported is that an intake record is created and added to the relevant file. It appears in this case, following searches of the electronic and hardcopy files of the children who were the subject of the telephone calls, that such intake records were not created in response to the applicant-™s calls. TUSLA stated that the staff member who took the phone calls is no longer employed by it and as such cannot be consulted to categorically establish whether such intake records were created. TUSLA stated that there is no evidence that records have been destroyed and it accepts that the records ought to have been created, but in any event cannot be located after all reasonable steps to find them.
TUSLA concluded on the basis of its searches and the information available to it that notes of the telephone calls were not created due to human error. While this is very unfortunate and while I can fully understand the applicant's frustration and disappointment, the role of this Office is confined to determining whether TUSLA has carried out all reasonable steps to locate the records. It is important to note that it is open to me to affirm a decision under section 15(1)(a) in circumstances where a public body states that records ought to exist but do not. The FOI Act does not provide for a right of access to records which ought to exist.
Having considered the circumstances in this case, I am satisfied that TUSLA has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request and has given an adequate explanation as to why it cannot grant the applicant-™s request. I find, therefore, that TUSLA was justified in refusing access to records on the ground that no 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 TUSLA to refuse access to records of a phone call made by the applicant under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.
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
