Whether the Council was justified in its decision to refuse the applicant’s request for records relating to her 2004 application for housing on the ground that the records sought no longer exist

1 August 2019

Background

In Case 170287, this Office reviewed a decision of the Council to refuse the applicant’s request for records relating to her 2004 application for housing on the ground that the file could not be found. In a decision which issued on 2 November 2017, Ms Dolan of this Office concluded that the Council had not taken all reasonable steps to search for the missing file as it had not stated whether any search had been undertaken of the filing cabinets or other relevant storage facilities where the closed files are kept and as the decision maker had not received the requested search details from the relevant staff members who might have further knowledge of the application.

Ms Dolan annulled the Council's decision in relation to the 2004 application and directed that further steps be undertaken to search for the missing records, such steps to include consulting further with the relevant staff members and carrying out a search of any storage facilities where closed housing applications may be kept.

On 6 December 2017 the Council issued a fresh decision wherein it refused access to the file on the ground that it no longer had the file. The applicant sought an internal review of that decision on 14 January 2019, following which the Council affirmed its original decision. On 29 April 2019, this Office received an application from the applicant for a review of that decision.

During the course of the review, the Council provided this Office with details of its record management practices and of the searches it carried out in an effort to locate the relevant file. Ms Swanwick of this Office provided the applicant with those details and informed her of her view that the Council was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act. In response, the applicant indicated that she wished the review to proceed. Accordingly, I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of Review

The scope of this review is concerned solely with whether the Council was justified in refusing the applicant’s request for records relating to her 2004 application for housing.

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 sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In submissions to this Office, the Council provided details of the searches conducted to locate the records sought by the applicant and of its record management practices. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council stated that all closed housing files are stored in filing cabinets and boxes in an outer office and that these were physically checked by name and reference number.

It is the Council’s position that the records sought do not exist. It explained that the amalgamation of Dundalk Town Council, Drogheda Borough Council, and Louth County Council took place in June 2014 and that, as confirmed following consultation with former members of staff of the housing section, affordable housing applications that had not progressed, were destroyed at that time. It stated that as the applicant’s application did not progress, her affordable housing file was destroyed.

I appreciate that the applicant will be disappointed with the Council’s response. However, the remit of this Office is confined to considering whether the decision taken by the Council was in accordance with the provisions of the FOI Act. In light of the explanations given by the Council, I am satisfied that it was justified in refusing access to the applicant’s affordable housing application dated 23 September 2004 on the ground that the records sought no longer exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request for records relating to her 2004 application for housing 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