Whether the Council was justified, under section 15(1)(a) of the Act, in refusing access to minutes of a meeting held between a named Council Official and the applicant’s political representative about providing Housing Assistance Payment to the applicant on the basis that the record sought does not exist

10 August 2020

Background

On 24 February 2020, the applicant submitted a request to the Council for a full copy of minutes of a meeting that was held between a named Council Official and the applicant’s political representative, wherein she contends that assurances were given by Official to provide her with the Housing Assistance Payment (HAP). In its decision dated 7 May 2020, the Council refused the request under section 15(1)(a) of the Act on the ground that no relevant records exist as no minutes were taken and no such assurances were given.

On 15 May 2020, the applicant sought an internal review of that decision, following which the Council affirmed its decision to refuse the request under section 15(1)(a). On 22 June 2020, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, Ms Greenalgh of this Office provided the applicant with details of the Council’s submissions regarding the searches it had conducted in response to her request and informed the applicant of her view that the Council was justified in refusing the request on the ground that the records sought did not exist. She invited the applicant to make a further submission on the matter and offered her an opportunity to withdraw her case. In response, the applicant said she did not wish to withdraw her application for review.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the applicant and the Council and to the communications between this Office and both the Council and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for access to the minutes of a meeting held between a named Council Official and the applicant’s political representative wherein the applicant contends that assurances were given by the Official concerning the provision of HAP, on the basis that the records sought do not exist.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comments. The remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As noted above, this review is confined to considering the Council’s decision about access to minutes of the meeting sought by the applicant in her FOI request.

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 steps it took to search for the records sought. 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 confirmed it had raised the request with the Official in question. He indicated that while he recalls the discussion with the political representative, it occurred on the fringe of a Council meeting and no notes were taken or correspondence exchanged.  He said did not take notes of the meeting, as he was very familiar with the case and simply outlined the issues to the political representative in this case. The Council added that the making and taking of public representations by elected members occurs in such a manner on a daily basis and it is common practice to have such conversations before and after Council meetings.  It said interactions between elected members and staff are voluminous and often informal and many representations are made at the fringe of meetings where an opportunity is taken to consult or get advice on a matter. 

Having considered the Council’s description of the searches undertaken and its explanation as to why no 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 request. I find, therefore that the Council was justified in refusing access to the minutes of the meeting on the ground that no relevant records exist.

Decision

I hereby affirm the Council’s decision to refuse access to the record sought by the applicant 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 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