Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to a Loss Adjustor's report relating to a specific property on the basis that it did not hold the record concerned
12 May 2022
Background
In a request dated 22 June 2021, the applicants sought access, through their solicitors, to a copy of a report prepared by an assessor following an assessment of damage to their property, to include any addendums, notes, or correspondence relevant to the report relating to the property. All references to communications with the applicants in this decision should be taken to include communications with their solicitors.
On 19 July 2021, the Council refused the request under section 15(1)(a) of the Act on the ground that it does not hold the records sought. It said a named insurance company (the Company), as the Council's insurers, was handling the matter on its behalf and had appointed loss adjusters to investigate the matter. It said it had not received the Loss Adjuster's report and understood that the report would be forwarded directly to the Company.
On 10 August 2021 the applicants sought an internal review of that decision. They argued that the record was deemed to be held by the Council pursuant to section 11(9) of the Act. On 2 September 2021, the Council affirmed its refusal of the request. On 24 January 2022, the applicants applied to this Office for a review of the Council's decision to refuse access to the report in question.
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 the correspondence between the Council and the applicants as outlined above and to the 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 Review
This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to the Loss Adjuster's report relating to the applicants' property on the ground that it does not hold the record concerned.
Analysis and Findings
Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable efforts have been taken to ascertain their whereabouts. The Council's position is that is does not hold the record sought as the Company handling the matter appointed the loss adjusters to investigate the matter. It said it had not received the Loss Adjuster's report and that the report was to be forwarded directly to the Company. In its internal review decision, it said it had not received a copy of the report and that the Company would not be providing the Council with a copy of the report.
The applicants do not dispute that the Council does not physically hold the report. Rather, their argument is that the report is deemed to be held by the Council for the purposes of the Act, pursuant to section 11(9) of the Act.
Section 11(9) provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. Section 2 defines -Service Provider- as -a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.- In other words, any records held by a service provider that relate to the service provided are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt.
In response to an invitation by this Office to make submissions on the matter, the Council provided correspondence it received from the Company. In the circumstances, I consider this to reflect the Council position in relation to this matter.
In its correspondence, the Company explained that the nature of its relationship with the Council is such that it indemnifies the Council in relation to valid claims on the payment of an insurance premium. It said that in providing indemnity, its policy terms and conditions include, among other things, the right to take over and conduct in the name of the Council, for its own benefit, any claim and shall have full discretion in the conduct of any proceedings and in the settlement of any claim. It said the Council has no role to play in the conduct of the claims process, other than the provision of information and assistance to the Company as required under the terms and conditions of the policy.
The Company added that an insured body is rarely furnished with a Loss Adjuster's report, other than when excerpts are provided when further clarification is required from the insured body. It said all such data is the proprietary commercial data of the Company alone, held by it in its own right. It also referred to a similar previous decision I made in case 160150, available on www.oic.ie.
The case in question concerned a request made to Galway County Council for information relating to the settlement of a claim. In considering whether section 11(9) applied in that case, I found that any records held by the insurer relating to the applicant's claim are held by it in its own right. I noted that the contract the Council entered into with its insurer involved the indemnification of the Council by the insurer against valid claims. I noted that it was entirely a matter for the insurer to determine how they process such claims and that the Council had no role to play in such matters. For those reasons, I did not accept that records relating to the processing of the applicant's claim that may be held by the insurer could reasonably be described, in the context of the FOI Act, as relating to a service that the insurer was providing for the Council.
In my view, the issues arising in this case are the same as those at issue in Case 160150. The nature of the service provided by the Company is the indemnification of the Council against valid claims, not the management of claims. It is a matter for the Company itself as to how it manages those claims and that the Council has no role to play in the conduct of the claims process. As such, I find that the report sought, comprising a records relating to the Company's management of the claims process, cannot be said to relate to the service provided by the Company in this case. I find, therefore, that the Council cannot be said to hold the record sought pursuant to section 11(9) of the Act.
Accordingly, I find that the Council was justified, under section 15(1)(a) of the FOI Act, in refusing the request for a copy of the report sought.
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 the Loss Adjuster's report relating to the applicants' property on the ground that it does not hold the record concerned.
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
