Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant’s housing application file on the ground that no further records exist or can be found
10 November 2021
Background
On 16 May 2020, the applicant submitted a request to the Council for his housing application file, to include all documents from Tusla, the courts, doctors etc. and all letters sent to the Council on his behalf, including his expressed interest in houses on the Choice Based Letting system. As the Council did not issue a decision on the request within the necessary timeframe, the applicant sought an internal review of the deemed refusal of his request on 11 August 2020.
On 2 September 2020, the Council part-granted the request. It identified 24 records as coming within the scope of the request. It granted access to 14 records, and refused access to records 1 to 8 under section 15(1)(i) of the FOI Act on the ground that those records were released to the applicant in a previous FOI request. It redacted certain information from records 9 and 11 under section 37 of the FOI Act. On 10 December 2020, the applicant sought a review by this Office of the Council’s decision on the ground that the Council had not provided copies of letters sent to the Council on his behalf by various parties.
During the course of the review, the Council identified one further record falling within the scope of the applicant’s request, comprising representation made on his behalf. This record was provided to the applicant. During the course of the review, Ms Whelan of this Office provided the applicant with details of the Council’s submissions regarding the searches it had conducted in response to his request. In response, the applicant indicated that he believed further correspondence to the Council on his behalf ought to be on his housing file.
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 the 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
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 any further records of correspondence sent to the Council on the applicant’s behalf on the ground that no further relevant records exist or can be found.
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, Ms Whelan of this Office asked the Council to provide details of searches conducted in response to the applicant’s request and, in particular, for correspondence sent on his behalf. In its submissions, the Council explained that all housing applicants are assigned a unique client reference number on processing their first application for social housing support. It said the applicant was assigned two client reference numbers, one in respect of an application in 2008 that was deemed ineligible, and a second in 2011 when he made a fresh application.
The Council explained that all relevant correspondence is tagged with the relevant client reference number and filed in that client’s hard copy file. It said that in some cases, correspondence submitted by or on behalf of an applicant is scanned and filed on a client’s electronic file in the ‘iHouse’ system which is used by the Council. The Council said that in response to the applicant’s request, both the iHouse system and his hard copy file were reviewed. Information relating to his bidding activity was also reviewed on the Choice Based Letting system.
The Council explained that the hard copy file relating to the 2008 application is no longer retained on his current file, as the National Retention Policy for Local Authority Records then in force provided for non-current records to be kept only for a period of three years. It said the iHouse electronic file for his 2008 application still exists on the system, but no documents are contained in this electronic file. It explained that the iHouse system is a national software system administered by the Local Government Management Agency and as a result, the Council does not have the facility to delete records from it.
The Council added that the applicant’s two reference numbers provided the basis for its search of iHouse and hardcopy records. It said a search by the applicant’s name confirms that these are the only two housing applications in the system. It said a significant volume of correspondence is received daily by the Allocations Section. It explained that the practice of manually recording the relevant client reference number on all correspondence reduces the risk of misfiling or misplacing records. It said, however, that it is not possible to completely rule out records being misfiled or misplaced. It said all correspondence received is generally added to the relevant file.
On the matter of third parties submitting correspondence to the Council on behalf of the applicant, it noted that records 18 and 23 that were released are examples of such correspondence. It added that if the applicant could provide further details of documents he believes should be on file, it would investigate same. The Investigating Officer forwarded details of the Council’s submission to the applicant. In response, he said he was aware that the Lord Mayor had made representations on his behalf and the no such records were released. He said this is just an example of the representations made. He subsequently said that the Council should have documents relating to court proceedings concerning custody of his son.
Following receipt of the details provided by the applicant, the Council said its ICT Unit retrieved relevant correspondence with the Lord Mayor following a mailmeter search of the email archive. It explained that while individual staff users can use the mailmeter facility on the intranet to search/retrieve their own archived e-mails, it is not possible to do this for other staff members other than through ICT so this record was not found by housing when checking records previously. It added that as can be seen from the content, the housing section acknowledged the representation, but it did not contain any information which made a material change to the applicant’s housing need. It said that for completeness, the housing section have added the record to the applicant’s housing file. It forwarded a copy of the relevant correspondence to the applicant. In relation to the documentation sought concerning the court proceedings, the Council said that record 13, which was released, was a record from the district Court.
Following receipt of the additional correspondence and the Council’s comments concerning the court proceedings, the applicant indicated that he remained of the view that further relevant records should exist. However, he did not provide any further specific details that might assist the Council in conducting further searches for relevant records. It is important to note that this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist. The question I must consider is whether the Council has carried out all reasonable steps to ascertain the whereabouts of relevant records.
It is unfortunate that the Council did not locate the record concerning the Lord Mayor’s representations during its initial searches for relevant records. However, it seems to me that having regard to its explanation of its records management practices in so far as they relate to housing applications, the Council reasonably conducted initial searches of the locations it would expect to find relevant records based on those practices. It is also important to note that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. As such, requesters should make every effort to ensure that their requests are sufficiently specific to allow the body to identify the record sought by the taking of reasonable steps.
In the particular circumstances of this case, having regard to the nature of the searches conducted by the Council and the details of its relevant records management practices, and having regard to the fact that the applicant has not provided any further evidence to support his contention that additional relevant records should exist, I find that the Council was justified in refusing access, under section 15(1)(a) of the Act, to any further records coming within the scope of the applicant’s request other than those already released.
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 Act, to any further records relating to the applicant’s housing file other than those already released.
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