Whether the PIAB was justified in refusing access, under section 15(1)(a) of the Act, to additional records relating to an assessment of a claim on the grounds that no further records exist
OIC-112285-M2F2V0
Background
In a request dated 5 May 2021, the applicant, a legal representative of a car-rental company, submitted a five-part request for records and information concerning the assessment of a particular claim by the PIAB. On 27 May 2021, the PIAB issued a decision wherein it said it had decided to grant the request. It released certain records and said that other records coming within the scope of parts 4 and 5 of the request had already been released.
On 13 July 2021, the applicant sought an internal review of that decision. In its internal review decision dated 5 August 2021, the PIAB provided the applicant with four further records and stated that all relevant documents had now been provided. On 31 August 2021, the applicant sought a review by this Office of the PIAB’s decision. Following a request by this Office for clarification of what aspects of the decision he wanted us to review, the applicant suggested that further relevant records that had not been provided to him should exist.
During the course of the review, the Investigating Officer provided the applicant with details of the PIAB’s submission wherein it described the searches undertaken to locate relevant records and invited him to make submissions in response to those search details. While the applicant indicated he intended to make a submission, no submissions have been received to date.
I have decided to conclude this review by issuing a formal binding decision on the matter. In carrying out my review, I have had regard to the correspondence between the PIAB and the applicant as outlined above and to the correspondence between this Office and both parties on the matter.
Scope of Review
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with the question of whether the PIAB 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 for records relating to a specified claim on the grounds that no further relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As I have outlined above, the PIAB provided this Office with details of searches it undertook in an effort to locate any further records and its reasons for concluding that no additional relevant records exist. As this Office has already provided the applicant with those details, I do not propose to repeat those details in full here. I confirm that I have had regard to them for the purpose of this review.
In short, the PIAB stated that all records created regarding the preparation of the assessment have been disclosed to the applicant in full. It said that as part of its assessment process, the applicant had already received other documents including the claimant’s own medical report and an independent medical report, both of which detail the injuries of the claimant concerned which would be the most significant documentation in relation to the personal injury giving rise to general damages.
The PIAB explained that records created or received in relation to the claims process are filed and stored within its PIAB Enterprise case management system. The search in this case entailed the use of the claim file reference number for this case, as was supplied by the applicant. It said the assessors assessed the matter via teleconference on Microsoft Teams based on the evidence before them as provided by the claimant concerned, namely the medical evidence and all details of special damages allowed, and indicated that MS Teams calls are not recorded.
The PIAB inquired of both of its statutory assessors in respect of the existence of any further records relating to the specific assessment outside of those filed on the PIAB Enterprise case management system. Both statutory assessors confirmed that all records in relation to their assessment are stored as per the PIAB policy on the Enterprise case management system and that no other documents were stored outside of this system. A search was made on the email accounts of the statutory assessors to ensure no further records were within the PIAB system and confirmed there are no records outside of the case management system.
The applicant also sought a copy of the document that was generated by one of the statutory assessors dated 23 April 2021, and the PIAB have confirmed that this document generated is the Agreed Digital Submission form which was disclosed to the applicant in the original decision but have indicated that it could arrange for a further copy to be provided to the applicant, if necessary. Furthermore, as to records of a named statutory assessor, the PIAB confirm there are no records relating to this person other than the note dated 23 April 2021 at 14:30pm and confirm that there is no correspondence between the co-assessors or other parties in relation to the assessment other than what has been released and therefore, there is no other information giving rise to the note of the assessor dated 23 April 2021.
In addition, the PIAB stated it operates the Enterprise system for case management and all records in relation to claims assessment are stored within the case management system. Records are not created filed or stored anywhere else and a specific check on that point was carried out with the two assessors. Based on this searches carried out of its system and confirmation from both statutory assessors, the PIAB is satisfied that all documents identified as relevant to the request have been supplied to the applicant.
Having considered the details of the searches undertaken by the PIAB and of its explanation as to why no further relevant records could be found, I am satisfied that the PIAB has carried out all reasonable steps in an effort to locate the records sought in this case. I am also mindful of the fact that the applicant has not provided any further evidence to support his contention that additional relevant records should exist. Accordingly, I find that the PIAB was justified in refusing the applicant’s request for further relevant records on the ground that no such further records exist.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the PIAB to refuse access, under section 15(1)(a) of the Act, to any further records relating to the assessment of a specified claim, 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