Whether the Council was justified in refusing access to records of the applicant’s correspondence with a named County Councillor under section 15(1)(a) of the FOI Act on the ground that no records exist or can be found

19 December 2019

Background

In a request dated 14 January 2019, the applicant sought access to all written/emailed information between the applicant and a named County Councillor along with any phone call records. In a decision dated 6 February 2019, the Council refused the request under section 31(1)(c) on the ground that the records sought consist of the private papers of a member of a local authority. Following a request for internal review, the Council affirmed its decision to refuse the request.  On 21 August 2019, the applicant sought a review by this Office of the Council’s decision.

Upon receipt of the application for review, this Office requested the Council to provide copies of the records to which access had been refused. In response, the Council indicated that it held no relevant records as any such records would be the private papers of the Councillor in question.

In the course of a number of exchanges of correspondence with this Office, the Council provided details of the basis on which it concluded that it holds no relevant records. It subsequently located one record which it released to the applicant. This Office then provided the applicant with details of the searches undertaken by the Council and of its reasons for finding that no further records exist or could be found. In his reply, the applicant indicated that he wished to continue to a decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to comments made by the applicant in correspondence with this Office and to the submissions made by the FOI body in support of its decision.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing the applicant’s request for access to records of his correspondence with a named County Councillor under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found.

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 its submissions to this Office, the Council provided details of the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, the Council submitted that that a physical search was carried out on the applicant’s housing file to identify the records sought. The Council’s housing database (ihouse) was searched using the applicant’s name and case reference number. The County Councillor’s mailbox was searched by the Council’s I.T. Section. The applicant’s name was used as the keyword during the search. I note that one email was identified and this was released to the applicant during the course of this review. The Council stated the Councillor also searched his Office. 

For the sake of clarity, I am of the opinion that records contained in a Councillor’s email account which is hosted on a Council server are not records held by the Council within the meaning of section 11(1) of the Act. Mere physical possession of a record, does not of itself, mean that the record is held for the purposes of the Act. I accept that for the records on the server to be deemed to be held by the Council, the Council must be in lawful possession of the records in connection with, or for the purposes of, its business or functions and must also be entitled to access the information in the records. Although the Council hosts the email account on its server it does not have right of access to the email account. Even if the records in this application were deemed to be “held” by the Council, they would be exempt under section 31(1)(c) on the ground that the records concerned consist of private papers of a member of a local authority. 

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 any relevant records coming within the scope of the applicant’s request. I find, that the Council was justified in refusing access to records on the ground that no other relevant records exist or can be found. 

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 the applicant’s request for access to records of his correspondence with a named County Councillor on the ground that the records sought do not exist or cannot be found.

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 by the applicant not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator