Whether the Council was justified in refusing the applicant's request for additional records relating to an unscheduled meeting he had with another named staff member on a specified date under section 15(1)(a) of the FOI Act on the ground that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken

21/02/2019

Background

The applicant in this case is a member of the staff of the Council. On 27 June 2018 he sought access to records relating to an unscheduled meeting he had with another named staff member on 9 February 2018, namely;
 
1. A copy of the notes used by the named staff member in that meeting, 
2. Any minutes or notes of the meeting,
3. Any emails from the named staff member to any other Council staff members in relation to that meeting, 
4. A copy of any communication from the named staff member to any other staff member of a specified section within the Council outlining the applicant-™s position and any role changes occurring, and, 
5. Any records of discussions between the named staff member and the Director of Services and/or HR in relation to the matter. 

On 17 July 2018 the Council refused the request under section 15(1)(a) on the ground that no relevant records existed or could be found. Following a request for internal review, the Council affirmed the original decision to refuse the request. On 4 October 2018 the applicant sought a review by this Office of the Council's decision.

During the course of the review, the Council informed this Office that following further searches for relevant records, it identified three records which it deemed relevant to the request and it provided the applicant with copies of those records with some redactions made to one of the records. On 25 January 2019, Ms Whelan of this Office provided the applicant with details of the Council's explanation of the nature and extent of the searches conducted and of its reasons for deciding that no other relevant records exist. She informed the applicant of her view that the Council was justified in refusing access to any additional relevant records and she invited the applicant to make a further submission on the matter. Subsequently, following further exchanges with this Office, the Council provided the applicant with an unredacted version of the record previously released with redactions.
As the applicant has made no further submissions on the matter, 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 the Council as set out above and to the communications between this Office and both the Council and the applicant on the matter. 

Scope of Review

This review is concerned solely with the question of whether the Council was justified in refusing access, under section 15(1)(a), to records relating to an unscheduled meeting he had with another named staff member on 9 February 2018, apart from those released during the course of the review, on the ground that no additional relevant records exist or can 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 relation to part 1 of the applicant's request, the Council stated in its decision letters that the casual notes made by the relevant staff member were shredded. In his application for review, the applicant expressed concern about what he described as the deliberate destruction of records. He argued that had proper procedure been followed the staff member concerned would have retained the notes.

In its submission to this Office, the Council stated that the staff member in question stated that the hand-written notes he brought to the meeting were brought as an aide-memoir for his purposes. The notes were described as an aide-memoir, containing single words without any context to describe them and could only be understood by the author. The staff member stated that it had been his intention, following the meeting, to convene a meeting of the managers under his supervision for the purposes of agreeing the re-organisation of duties as a consequence of the subject matter of the meeting with the applicant. He stated that as the meeting of 9 February 2018 was, in effect, aborted, the hand-written aide memoir was not converted into a formal record.
The Council added that when the staff member's note pad containing the aide-memoir in question was full, he used the secure document disposal of the Council on-site to dispose of the notepad. The Council stated that having reviewed the notepad currently used by the staff member in question, the disposal of the earlier notepad must have taken place in late April or early May 2018.

In essence, the Council's position is that the notes that the staff member in question brought to the meeting were for his own use and did not comprise formal records of the meeting. Given the nature of the notes and given the staff member's explanation of the circumstances surrounding the notes, I am satisfied that the destruction of the notepad containing the notes cannot reasonably be described as the deliberate destruction of records that should have been retained in line with the Council's records management policy.

In relation to part 2 of the request, the Council stated that the staff member who met with the applicant confirmed that he took no notes at the meeting and that no minute of the meeting was created at a later date. The applicant has not disputed this.
In its submissions to this Office, the Council provided details of the searches conducted in response to parts 3, 4 and 5 of the request. In short, the Council stated that email accounts of all relevant individuals were searched using key terms and appropriate date parameters. These searches were conducted in the presence of the Council-™s Access to Information Officer. While these searches resulted in a number of records being released to the applicant, no further records falling under the scope of the original request were located. 

Having considered the details of the searches undertaken, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of further relevant records coming within the scope of the applicant's request. I find, therefore, that the Council 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 Council to refuse access to further records relating to an unscheduled meeting the applicant had with another named staff member on 9 February 2018 under section 15(1)(a) of the FOI Act on the ground that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken.

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