Whether the Council was justified in refusing access to additional records relating to the applicant’s increment under section 15(1)(a) of the FOI Act on the grounds that the records sought do not exist or cannot be found

6 April 2020

Background

The applicant submitted a two-part request to the Council on 5 April 2019 seeking all communications written or electronic, including phone records and hand written notes concerning his increment due since November 2018.  He also sought communications concerning an internal investigation regarding a fire that occurred at a named location. On 7 May 2019, the Council part-granted the request, providing the applicant with records relating to his increment and refusing records relating to the fire. On 18 June 2019, the applicant sought an internal review of the Council’s decision concerning his increment, contending that further records ought to exist. On 26 June 2019, the Council affirmed its original decision. On 27 November 2019, the applicant sought a review by this Office of the Council’s decision.

During the course of this review the Council located an additional record which it provided to the applicant. Ms Greenalgh of this Office provided the applicant with details of the searches undertaken by the Council and invited the applicant to make further submissions. In reply, the applicant expressed his view that further records ought to exist.

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 the submissions made by the Council, submissions made by the applicant and to the comments of the Council and the applicant in the matter.  I have also examined the records at issue and I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing access to additional records relating to the applicant’s increment under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found after all reasonable steps have been undertaken to ascertain their whereabouts.

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.

During the course of the review, the Council provided details to this Office of the steps taken to search for the records, along with miscellaneous information about the Council’s records management practices insofar as those practices related to the records in question.  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 provided details of all members of staff with whom they had consulted and details of the searches undertaken by those staff members, who searched their emails, electronic records and physically searched their hard copy records.

The applicant contends that there should be further records and refers in particular to a record of conversations between two staff members about his increment. The Council stated that the staff members in question carried out searches of their records and that no further records were located. The Council stated that it is not its practice to create a record of every discussion that occurred between the staff who were involved with these increments. 

While I understand the applicant’s frustration and disappointment with the absence of certain records, the role of this Office is confined to determining whether the Council has carried out all reasonable steps to locate the records.  It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthemore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

Having considered the searches undertaken by the Council, I am satisfied that it has carried out all reasonable steps to locate the records sought in this case. I find therefore, that the Council was justified in refusing access to the records sought on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

I hereby affirm the Council’s decision to refuse access to additional records relating to the applicant’s increment under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found after all reasonable steps have been undertaken to locate them.

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 affect 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