Whether the Department was justified in refusing access to further records under section 15(1)(a) of the FOI Act

28 April 2020

Background

On 24 June 2019, the applicant made an FOI request to the Department for Whatsapp and Facebook Messenger messages of four named members of staff concerning him and sent from their company phones between specified dates. The Department issued a decision on 24 July 2019. It identified two pages of messages as falling within the scope of his FOI request. It granted access to some information and refused access to the remaining information on the ground that it was exempt under sections 15(1)(a) and 37(1) of the FOI Act. On 20 August 2019, the applicant applied for an internal review decision. On 10 September 2019, the Department issued an internal review decision, in which it affirmed its original decision. On 15 September 2019, the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the correspondence between the Department and the applicant as described above, as well to correspondence between this Office and the Department. I have also had regard to the provisions of the FOI Act. 

Scope of the Review

During the review process, the applicant confirmed to this Office that he does not seek access to the withheld information in the two pages identified by the Department. That information therefore falls outside the scope of this review. However, the applicant queries whether the two pages comprise all the information held by the Department in relation to his FOI request. Accordingly, this review is concerned with whether the Department was justified in refusing access to any further information within the scope of the applicant’s FOI request, under section 15(1)(a).

In submissions to this Office, the applicant refers to phone texts and Lync. However, the scope of this review is confined to the terms of the applicant’s original FOI request, as outlined above. I should also note that in his internal review request, the applicant refers to another FOI request which he made to the Department. That was dealt with in a separate review by this Office and falls outside the scope of this review.

Preliminary Matters

My jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. 

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

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 this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

During the review process, the Investigator questioned the Department about its record management practices and the steps taken to search for the information sought by the applicant. The Department notes that the records sought are Whatsapp and Facebook Messenger messages of four named members of staff about the applicant in a given date range. It says that one of those individuals is on long-term leave. It therefore contacted the other three members of staff and believes that they would hold the relevant records.  One individual did not have Whatsapp or Facebook Messenger on their company phone and therefore their search results were nil. The other two individuals searched their message history and returned any relevant records they identified. They state that they searched using the correct search facilities and noted that deleted messages showed up in their search results. The applicant also queried what software the Department used to monitor Whatsapp and Messenger, but the Department has advised this Office that it does not monitor Whatsapp or Messenger.

The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. In the circumstances, I am satisfied that the Department has taken reasonable steps to search for the information. I accept that in all the circumstances, including the fact that the applicant was looking for exchanges between named members of staff in certain date ranges, the Department’s approach to the search was adequate. I find that the Department was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot 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 affirm the Department’s decision, 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.

Elizabeth Dolan

Senior Investigator