Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to records relating to decisions of the Council concerning the applicant’s employment and a previous FOI request

12 February 2021

Background

The applicant in this case is a former employee of the Council. On 18 December 2017, he wrote to the Council seeking to have his appointment to a particular grade back-dated and he outlined his reasons for making that request. On 22 March 2018, the Council’s Head of Human Resources wrote to the applicant and informed him that his request would not be considered as he was no longer employed by the Council.

According to the applicant, he contacted the Council again on 14 December 2018 requesting details of the appeals process and he sent two further reminders on 6 February 2019 and 15 March 2019. On 18 April 2019, he emailed the Council wherein he said he had asked on a number of occasions over the previous five months to be given “some very basic information” and that he had not received a response. He asked that he be provided with “the information” and he said that in the event that the Council failed to accede to his request, he wished to make a formal request under the FOI Act for details of the Council’s appeals process.

The applicant said he sought updates on his request on 31 May 2019 and 23 July 2019 following which he received a response from the Council indicating that it had no record of an FOI request. On 2 August 2019, the applicant again emailed the Council wherein he said his FOI request (his email of 18 April 2019) had been refused. He sought an internal review of the refusal of his request and he also sought a statement of reasons for the refusal of his request.

By email dated 13 August 2019, the Council informed the applicant that his request of 18 April 2019 was not interpreted as a valid request and as such, it had not been refused. Nevertheless, it proceeded to respond to what it regarded as a request for details of the appeals process (the request was assigned reference number FOI 1010). It informed the applicant that the decision of the unit head in the HR Department in relation to personal queries he raised regarding his former employment with the Council as communicated to him on 22 March 2018 could be appealed to the HR Director of Services.

On 20 August 2019, the applicant sought a number of clarifications in respect of the Council’s response. He said he was unsure as to whether the Council’s response constituted an internal review following his request for internal review of 2 August 2019. He also said that he had first requested details of the appeals process on 14 December 2018 and that he had not received them to date. He acknowledged receipt of the name of the person to whom his appeal should be sent but argued that it does not constitute or describe a process.

The Council issued its response on 28 August 2019. It explained that the applicant’s initial personal query of December 2017 related to his former employment, that it was dealt with as a HR matter and not as an FOI request, and that a decision on that query issued on 22 March 2018. It said the request of 18 April 2019 was for details of the appeals process and that it had informed him on 13 August 2019 that he could submit his appeal to the HR Director of Services. It proceeded to outline further details of the appeals process. It explained that it regarded its response of 13 August 2019 as a decision to grant his request of 18 April 2019 for details of the appeals process.

On 20 December 2019, the applicant submitted a fresh request to the Council for the following records:

1. The record showing how the conclusion was reached that FOI 1010 (his email of 18 April 2019) was not a valid request;
2. Copies of all records added to his personnel file after 1 December 2017;
3. The composition of the Internal Review Panel referred to in the Council’s correspondence of 13 August 2019 (the Internal Review Panel that considers applications for internal review of decisions made on FOI requests)
4. Records of all correspondence, communications and decisions made in relation to his letter to the Council dated 18 December 2017; 
5. The record of the facts referred to in the Council’s email to the applicant dated 28 August 2019 (the email indicated that the HR Director of Services would review “the facts” relating to the applicant’s personal query)
6. The record of the facts that informed the Council’s decision communicated to the applicant on 22 March 2018.

The Council issued its original decision on 20 January 2020 in which it decided to part-grant the request. It provided records to the applicant in response to parts 2 and 4 of the request and provided information in relation to part 3 of the request. It refused parts 1 and 6 of the request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. It refused part 5 under section 15(1)(b) of the FOI Act on the ground that that part does not contain sufficient particulars to enable the record sought to be identified.

The applicant sought an internal review of that decision on 14 February 2020. He also asked for a statement of reasons as to how the response was formulated. On 3 March 2020, the Council affirmed its original decision and informed the applicant that it could not identify an act for which he was seeking a statement of reasons.

On 25 August 2020, the applicant sought a review by this Office of the Council’s decision. He raised a number of concerns about the Council’s processing of his request and he asked that the Council’s conduct in responding to his initial request be investigated and the information he sought be provided to him.

During the course of the review, the Council stated that it wished to rely on section 15(1)(a) of the FOI Act in refusing part 5 of the request also. Ms Whelan of this Office provided the applicant with details of Council’s submissions and invited him to make a further submission on the matter. In response, the applicant indicated that he did not wish to withdraw his application for review.

I have now completed my review in this case. I have decided to conclude the review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and Council as set out above and to the communications between this Office and both the Council and the applicant on the matter.

Scope of Review

As Ms Whelan has informed the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Therefore, this review is concerned solely with the question of whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to records falling within the scope of parts 1, 5 and 6 of the applicant’s request as outlined above.

I should add that while the applicant sought a statement of reasons in his request for internal review, I have not considered whether he is entitled to the statement sought as it did not form part of the original request as set out in his email of 20 December 2019.

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.

It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Part 1

The applicant sought, at part 1 of his request, a record showing how the conclusion, that FOI 1010 was not a valid request, was reached. In its submission to this Office, the Council explained that it did not consider the request to be valid as it considers that the email did not contain sufficient information to allow for the identification of the record sought. It said it was unclear as to whether the requested ‘details of the appeals process’ referred to the appeals process under FOI or an appeals process of another function/service of the Council. It said the applicant made his FOI request conditional on the Council not having acceded to his previous requests for ‘basic information’ and that this placed the Council in a very difficult position in terms of determining the date of receipt of the FOI request.

The Council added that, in accordance with its practices and procedures, it would normally create a record of the reasoning behind its decision to declare an FOI request to be invalid. It said that unfortunately, on this occasion a record was not created. It acknowledged that it failed to comply with its normal practices and procedures by not consulting with the applicant at the time of his request with a view to obtaining clarity in terms of identifying the records being sought. It acknowledged that in addition to obtaining this clarity through agreement with the applicant on a revised wording to his FOI request, dialogue at that stage would also have removed the uncertainty that existed in terms of the date for receipt of the request, as the date on which agreement was reached with the applicant on a revised wording would have become the relevant date for receipt of the request.

The Council said it accepts that it was remiss of it both not to create a record showing how the conclusion was reached that the applicant’s FOI request was invalid and not to consult with the applicant at the time with a view to obtaining clarity in terms of identifying the records being sought.

In short, the Council’s position is that as it did not create a record of the reasoning behind its decision to declare FOI 1010 invalid, no such record exists. Having regard to the Council’s explanation, I am satisfied that was justified in refusing part 1 of the applicant’s request under section 15(1)(a) on the ground that no relevant records containing the information sought exist. I also welcome the Council’s acknowledgement that it should have engaged with the applicant in the first instance to clarify the request, which would have avoided any subsequent confusion.

Part 5

Part 5 of the applicant’s request was for the record of the facts which would be reviewed by the Human Resources Director of Services in the event that the applicant appealed the decision of the Council’s HR Unit Head dated 22 March 2018.

In its submissions to this Office, the Council accepted that, having reviewed the email of 28 August 2019, it does refer to ‘facts’ and that part 5 of the request does, indeed, provide sufficient particulars to allow the Council to identify the relevant record(s) sought. However, it said that as the applicant had not sought any such appeal, a record of the relevant facts had not been created.

The Council explained that the process of determining pertinent facts on receipt of an appeal from the applicant would have taken into consideration records relating to the applicant’s employment with the Council that are held on his personnel file. The Council stated that while it had provided many of the records on the applicant’s personnel file previously, it could make available to the applicant all records relating to his employment with the Council which are held on his personnel file subject to any exemptions that may apply under the FOI Act.

It seems to me that while records on the applicant’s personnel file may, on review, be deemed relevant to an appeal, the Council had not undertaken such a review at the date on which the email in question was created and as such, the relevant facts had not been identified at that time. Having considered the Council’s explanations, I am satisfied that part 5 of the applicant's request was for specific information which is not contained in a specific record held by the Council and that to collate the information sought would require the creation of a new record which the Council is not required to do. I find, therefore, that the Council was justified in refusing part 5 of the applicant’s request under section 15(1)(a) on the ground that no relevant record containing the information sought exists.

Part 6

At part 6 of his request, the applicant sought the record of the facts that informed the Council’s decision communicated to him on 22 March 2018. In its submission to this Office, the Council said its response to Part 6 was as outlined in respect of Part 5, based on its assumption that the “facts” referred to in Part 6 are the same as the facts referred to in Part 5. That assumption is incorrect.

Part 6 of the request is a request for a record of the facts relied upon by the HR Unit Head in issuing her decision dated 22 March 2018 in response to his personal queries. Any such facts relied upon would not necessarily be the same as facts that might be relied upon in a subsequent appeal.

In her letter of 22 March 2018, the Council’s Head of HR informed the applicant that his request to have his appointment to a particular grade back-dated would not be considered as he was no longer employed by the Council. In essence, Part 6 is a request for any record that contains details of any facts that informed the Head of HR’s decision.

The question arising for this Office, therefore, is whether the Council was justified in refusing that part of the request on the ground that no relevant records exist. In response to Part 5, the Council said that the process of determining pertinent facts during the course of an appeal would take into consideration records relating to the applicant’s employment with the Council which are held on his personnel file. It is reasonable to assume that those same records may have had at least some part to play in the decision making process in respect of the original request for back-dating. However, it is not at all certain that the Council would hold no other records of relevance.

On this point, the Council provided no evidence of the searches it had conducted for relevant records, nor did it provide a sufficient explanation as to why no further relevant records might exist. For example, it did not outline details of any searches undertaken by the Head of HR for records that might assist in her consideration of a request such as that at issue in this case, namely a request made by a former staff member who is no longer employed by the Council.

In the circumstances, based on the Council’s submissions to this Office, I cannot find that the Council took all reasonable steps to ascertain the whereabouts of relevant records coming within the scope of Part 6 of the request. I am not suggesting that other relevant records exist. However, I am not satisfied that the Council took all reasonable steps to ascertain whether they do or not. I consider, therefore, that the appropriate course of action to take is to annul the Council's decision in respect of part 6 of the applicant’s request, the effect of which is that the Council must consider that part of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council's decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I annul the decision of the Council to refuse, under section 15(1)(a), Part 6 of the applicant’s request. I direct the Council to conduct a fresh decision-making process in respect of that part of the applicant’s request. I affirm the Council’s decision in respect of the remainder of the request.

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