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 issues on the ground that no further relevant records could be found

14 June 2021

Background

In a request dated 4 June 2020, the applicant sought access to all records relating to him so that he could understand and obtain reasons for decisions made with regards to his housing issues. As the Council failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of the request on 25 September 2020. Following correspondence with this Office, the Council issued its effective position on the request on 30 November 2020, wherein it said it decided to grant the request and it released a copy of his housing file. On 10 December 2020, the applicant sought a review by this Office of the Council’s decision on the basis that he had not received all relevant records. Amongst other things, he noted that no records had been provided for 2013 and that records from recent years were missing.

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 communications between the Council and the applicant referred to above and to communications between this Office and both parties on the matter. 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 effectively refusing, under section 15(1)(a) of the Act, the applicant’s request for further records relating to him on the ground that no further relevant records exist or could be found.

Preliminary Matter

The Council’s handling of the applicant’s request and its subsequent engagements with this Office fell well below the required standards. It failed to issue a first instance decision despite informing the applicant he would receive one, and this Office encountered significant delays in obtaining relevant information in order to progress the review. These delays necessitated a formal notification being issued to the Chief Executive of the Council under section 45, requiring the provision of the information sought.

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 informed this Office that it had granted a previous request made by the applicant in 2019 for all records held on his housing file. It said that on foot of the later request that is the subject of this review, it released all records added to the file since that date. It undertook to provide the applicant with a further set of the records released on foot of the 2019 request and it did so on 18 January 2021.

Following receipt of those records, the applicant informed this Office that he remained of the view that he had not received all relevant records. He referred, in particular, to Clerk of Works reports from 2013 and 2019, and records of correspondence with the Office of the Ombudsman.

On 22 January 2021, this Office sought submissions from the Council on the searches it had undertaken to locate all relevant records coming within the scope of the request. In doing so, the Council’s attention was drawn to the examples of missing records as provided by the applicant.

On 29 January 2021, the Council said it would need additional time to prepare its submissions. At the same time, it said correspondence with the Office of the Ombudsman concerning complaints made are normally held on file in its Corporate Services section. It said any response to the correspondence arising from these complaints would be held in the Section responding and a copy held on the Complaints file in Corporate Services but that the Ombudsman’s correspondence would not necessarily be held on the responding Section’s files.

The Council added that the applicant made two complaints to the Ombudsman in 2020, on 21 July 2020 and a second on 4 November 2020. The Council provided this Office with copies of the correspondence on both complaints and said that the responses to the Ombudsman’s Office were copied to the applicant, directly or through the Ombudsman’s Office.

In relation to the Clerk of Works Reports, the Council noted that a “List of works to be completed” was issued to the applicant’s landlord in July 2019, following an inspection by the Clerk of Works, and that this may be the report referred to by the applicant. It provided this Office with a copy of that record.

On 4 February 2021, the Investigating Officer asked the Council if the correspondence concerning the Ombudsman complaints had been released to the applicant. On 16 February 2021, the Council said the records released following the Ombudsman complaint were also released to the applicant on foot of his requests. It said the date (8/8/2021) recorded for a specified record on the schedule of records provided with the second request should read 8 July 2020 and that the record at issue is a thread of emails between a representative for the applicant and a member of staff in the Council from 14th May 2020 to 8th July 2020. Having reviewed the records provided to this Office, I note that they contain correspondence dated between 14 May 2020 and 24 August 2020, and include correspondence between staff of the Office of the Ombudsman and the Council, as well as correspondence between the applicant’s representative and a member of staff in the Council. The Council in further submissions to this Office stated that only certain attachments and parts of emails relating to the applicant’s Ombudsman complaint had been released to the applicant, and not the full set of records held by the Council.

In relation to the second Ombudsman complaint, it said the applicant’s letter to the Ombudsman dated 19 September 2020 and the Council’s reply to him dated 23 November 2020 were released to him in the documents released under the second request. It said the letters/emails from the Ombudsman are not included on the housing file due to the fact with the reduced staffing number in Housing due to Covid safety measures the letters/emails have not been printed and filed yet.

On 18 February 2021, the Council provided its submission concerning the searches it had undertaken when processing the request. It said the applicant’s housing file was examined and its full contents released to him. It said any email communication relating to the applicant’s housing file have been included in hard copy on the file. On the matter of Clerk of Works reports, it initially said that there are no such reports. It said a Clerk of Works did inspect the applicant’s residence but that no reports were created as a result of this inspection. As it had previously outlined, it said a “List of works to be completed” was issued to the landlord in July 2019, following an inspection by the Clerk of Works.

On 18 March 2021, the Investigating Office sought further clarifications regarding the absence of Clerk of Works reports, including whether the relevant Clerks of Works were consulted on foot of the request and what records would generally be held relating to such inspections

In the Council’s response of 26 March 2021, it said an inspection was carried out in 2013 by the Clerk of Works and following this inspection the landlord was written to with a list of works. It attached a copy of the report, file notes and the list of works. It said the Clerk of Works involved in the 2013 inspection was not consulted as he is no longer in that post. It said the current Clerk of Works was consulted and he was involved in the 2019 inspection. It said records of both inspections carried out were on the Landlord’s file.

On 29 March 2021, the Investigating Officer asked the Council if the records relating to the 2013 inspection were released and she sought clarification as to why similar records were not available relating to the 2019 inspection.

The Council sought an extension to the deadline for response. While this extension was granted, no response from the Council was received. In its email to this Office requesting the extension to the deadline, the Council stated that as a result of the ongoing Covid-19 Emergency a significant number of staff, including its Housing staff, are working remotely, and this has made it problematic to conduct searches of its physical files. This seems to suggest that the Council did not carry out all relevant searches before it issued its effective position to the applicant in this case.

As previously noted, the lack of response resulted in formal notification being issued to the Chief Executive of the Council under section 45, requiring the provision of the information sought. The Council then provided some further information regarding the records that had and had not been released to the applicant at this stage, as well as some further information on the record management processes involved. It stated that the Inspection Report drafted in November 2013 was on foot of the first inspection on the property and was drafted in accordance with the guidelines in place at that time. The Council said that the Clerk of Works retained copies of his site notes on this occasion and a formal written notice based on the inspection was issued to the Landlord. It stated that the Inspection Report drafted in July 2019 was on foot of a second, follow-up inspection. It stated that a new Clerk of Works was assigned to this area in the intervening years. It stated that the Clerk of Works did not retain copies of his site notes, however a checklist of works to be completed by the Landlord was drafted and a formal written notice based on the inspection was issued to the Landlord.

From a schedule of records provided to this Office, it is clear that a number of records relating to the applicant’s request are held by the Council but have not been released to the applicant on foot of his request. The Council have also failed to clarify what searches have been conducted in the relevant Section of the Council (namely the Housing Section) at this stage.

The review before this Office relates to the Council’s effective decision to refuse access to the further records sought under section 15(1)(a) of the Act on the basis that no relevant records could be found. In the circumstances, it is clear to me that the Council did not take all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request, and indeed did not properly consider all relevant records coming within the scope of the applicant’s request in the first instance. As such, I simply cannot find that section 15(1)(a) applies in this case.

In the circumstances, I consider that the appropriate course of action to take is to annul the Council’s decision to refuse the applicant’s request under section 15(1)(a) of the Act, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. In doing so, I would urge the Council to have regard to the guidelines this Office has published on its website concerning section 15(1)(a). 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.

I would also remind the Council that it has a statutory obligation to process requests and to issue decisions within the time-frames set out in the Act. While I can fully understand the difficulties FOI bodies have faced in recent months in delivering services, including FOI services, arising from the COVID-19 crisis, the act remains in force and FOI bodies cannot simply ignore its provisions. I note that the Department of Public Expenditure and Reform has issued guidance for FOI bodies for dealing with requests during the crisis. The guidance, entitled “Continuity of FOI Services”, explains that the FOI Act remains in force and arrangements must be put in place to ensure that requests continue to be processed to the greatest extent possible. It encourages FOI bodies to proactively engage with requesters.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access to further records relating to the applicant under section 15(1)(a) of the FOI Act. I direct the Council to conduct a fresh decision-making process in respect of the applicant’s 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