Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to an alleged telephone call on or before the 7 February 2019 concerning the sale of a specified property, on the ground that no relevant records exist or can be found

15 September 2020

Background

The background to this case involves the sale of a named property to the Council. It appears that the applicant is currently in dispute with his now former solicitors and the Council regarding the sale. In a request dated 19 February 2019, the applicant sought access to all records from 18 October 2017 relating to the sale of a named property to the Council. On 15 March 2019, the Council issued a decision in which it decided to grant the request.

On 25 March 2019, the applicant sought an internal review of that decision on the ground that the information provided was incomplete. He referred to a telephone call made/received on or before 7 February 2019 about which he said he had previously requested details. He said he wanted “a copy of notes of that call and the telephone exchange record of that call showing its duration, the number dialled or the number from which the call was received”. On 2 April 2019, the Council affirmed its original decision and refused access, under section 15(1)(a) of the Act, to the record of the phone call sought on the ground that no such records could be found. It said the records its Law Department has from 18 October 2019 to 7 February 2019 are those outlined in its FOI reply.

It appears that the applicant subsequently spoke with the Council by telephone on a number of occasions following which, on 9 May 2019, the council provided the applicant with “the paper record” in relation to the calls listed on the schedule of accommodation attached to its decision letter. On 21 May 2019, the applicant wrote to the Council and argued that the Council had not included any internal or external emails. He also again sought access to information relating to an alleged phone call on or recently before 7 February 2019. The Council treated that request for emails as a new request. In its decision on that request, it refused access to five internal emails under section 31(1)(a) on the ground that they attract legal professional privilege.

On 11 October 2019, the applicant sought a review by this Office of the Council’s internal review decision of 2 April 2019. In a letter of 6 November 2019 to this Office, he indicated that he was seeking a review of both the decision of the Council to refuse access to records of the alleged telephone call and its subsequent decision to refuse access to certain internal emails under section 31(1)(a).

During the course of the review, Ms Minogue of this Office informed the applicant of her opinion that he had narrowed the scope of his request, when seeking an internal review of the original decision, to records of the alleged telephone call. She provided the applicant with details of the Council’s submissions to this Office wherein it outlined the searches it had undertaken in an effort to locate relevant records and she informed him of her view that the Council was justified in refusing access to additional records on the ground that no further relevant records exist or could be found. The applicant subsequently provided a further submission to this Office and having regard to that submission 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 carrying out my review, I have had regard to 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 the Review

In a submission of 15 January 2020 to this Office, the applicant argued that the review should consider both the refusal of internal emails and the refusal of records relating to the alleged telephone call. He argued that the Council incorrectly treated his letter of 21 May 2019, wherein he referenced the absence of emails from the records released on 15 March 2019, as a new request.

Having regard to the wording of his request for internal review as set out in his email of 25 March 2019, I am satisfied that the applicant narrowed the scope of his request at that stage to records of the alleged telephone call. As such, I do not propose to consider the council’s subsequent refusal of the internal emails. The applicant may wish to ask the Council if it will accept a late application for an internal review of that subsequent decision to refuse access to the emails in question on the ground that he mistakenly understood that they formed part of this review. Alternatively, he may wish to submit a fresh request to the Council for those records.

The scope of this review is concerned solely with whether the Council was justified in refusing access to additional records relating to an alleged telephone call on or before the 7 February 2019 on the ground that no relevant records exist or can be found. 

Preliminary Matter

Before I address the substantive issues arising, I would like to make a preliminary comment. In his submissions of 2 March 2020 to this Office, the applicant alleged that the Council contacted his former solicitors each time he made a request for records to seek permission regarding what could be released. It is important to note that this review has been conducted under section 22(2) of the Act and the scope of the review is therefore confined to the single issue outlined above.

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 his submission to this Office, the applicant said his former solicitors asserted, on 7 February 2019, that they “did receive a recent telephone call from Dublin City Council Law Department in relation to this sale”. He did not provide any further information relating to the nature of the call or the issues discussed.

In submissions to this Office, the Council provided details of the searches conducted to locate the records sought by the applicant. It also provided an explanation as to why it would not hold the type of telephone record details the applicant was seeking. 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 the telephone system in place does not record calls made by the Housing or Law Departments. It said that only incoming calls are recorded on contact centre phones at the request of an individual section. It said that even where calls are recorded, the information is stored for one year only. The sections where the incoming calls are recorded do not include either the Law or Housing Departments.

In relation to searches carried out by the Law Department, the Council said that searches were carried out on the paper file kept by it and its in-house case management system. It said that Law Department operates an in-house case management system which stores all emails and letters generated by it. The Council confirmed that a reference number is assigned to each case and is linked to the paper file. The address of the named property and the applicant’s name were used to identify records.

It is, in essence, the Council’s position that no further relevant records exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist.

Having considered the details of the searches undertaken and its explanation as to why no further records exist, I am satisfied that the Council 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. 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, under section 15(1)(a) of the FOI Act, to records relating to an alleged telephone call on or before the 7 February 2019 concerning the sale of a specified property, on the ground that no relevant records exist or can 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator