Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further specified forestry records on the ground that no further records exist or can be found after all reasonable steps have been taken to locate them

18 August 2023

Background

On 24 June 2022, the applicant made a four-part FOI request to the Department of Agriculture.  The request was amended on 28 June 2022. Parts one and four of the request were for records, while parts two and three were for statements of reasons under section 10 of the FOI Act. This review is focused on parts one and four of the request; parts two and three have been dealt with in a separate review:OIC-132144. In part one of the request, the applicant sought all Forest Service records regarding the review of a specified forestry application the applicant had made (NWS1149); in part four of the request, he sought records concerning any rights of review in respect of decisions made by the Forest Service.

The Department did not issue a decision on the request in the statutory four-week timeframe and on 26 July 2022, the applicant sought an internal review of that effective refusal. As the Department again failed to issue a decision within the statutory timeframe, the applicant applied to this Office for a review of the deemed refusal of his request. On foot of intervention from this Office, the Department issued a letter to the applicant on 4 October 2022 setting out its effective position. In relation to part one of the request, it referred to section 15(1)(i) which provides that a request can be refused when the records have already been released to the requester. It said that all records concerning the specified forestry application had already been released to him further to an earlier FOI request made on 2 April 2021. It also provided a schedule listing 22 additional records, from 3 April 2021 to date, which it released in full. In relation to part four of the request, it released a copy of a document entitled -�Appeals Process -� Forestry Inspector Standard Operating Procedure v2 April 2021-�. This was listed as record 22 on the schedule.

On 6 October 2022, the applicant applied to this Office for a review of the Department-�s decision, stating that the Department-�s response had been inadequate and had not provided him with all the requested information. In the course of the review, the Department provided submissions to this Office on the searches undertaken for relevant records, details of which were provided to the applicant for comment. The Department also located and released three additional records to the applicant. While the applicant said that he thought he had been provided with all relevant records, the application for review has not been withdrawn and so I have proceeded to conclude the review by way of a formal, binding decision.

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 submissions made by the Department and by the applicant, and to the correspondence outlined above. I have also had regard to the contents of the records concerned.

Scope of Review

As the applicant is of the view that additional records relating to his request should exist and should be released to him, while the Department-�s position is that all records have been released, this is effectively a refusal to release further records under section 15(1)(a) of the FOI Act.

In seeking submissions from the Department, I noted that with reference to the precise wording of part one of the FOI request, only records created from the date the applicant applied for areview(my emphasis) of his forestry application should be under consideration i.e. records created on or after 3 February 2022, the day on which he applied for such a review. The applicant was also notified of this.

Just one record was identified and released further to part four of the request. The applicant raised questions about this record, and queried the metadata relating to it, specifically the -�date created-� in the properties of the record. I have taken this as effectively representing a position that other versions of this record must exist and have not been released, and so section 15(1)(a) is also relevant in respect of part four.

This review is therefore concerned solely with the question of whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing to release any further records relating to parts one and four of the applicant-�s FOI request.

Preliminary Matters                                                                                                         

As noted in the other decision relating to this FOI request (OIC-132144), the Department missed the statutory deadlines for responding to both the applicant-�s initial FOI request and his request for an internal review. I remind the Department of its obligations to respond to FOI requests within the timelines set out in the legislation.

In his communications with this Office, the applicant expressed his dissatisfaction with the Department and how it dealt with this and other forestry applications made by him. He queried its decision on that forestry application and made various points about its processes, pointing to what he considered to be inadequacies and inconsistencies in the approach taken. Where such points could be directly connected to the subject matter of this review, i.e. whether further relevant records exist or can be found, I raised them with the Department for comment. However, many of the points made fell outside the scope of a review by this Office, which 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.

Analysis and Findings

Section 15(1)(a)

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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

As noted above, the Department provided this Office with details of the searches it said that it undertook to locate relevant records. Its position is that all reasonable steps have been taken to locate records relevant to this FOI request. As also noted above, I provided the applicant with a summary of the Department-�s submissions. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

In relation to part one of the request, which was for records relating to the review of forestry application NWS1149, in summary, the Department said that both physical and electronic searches were carried out using the appropriate file reference number as well as the applicant-�s name, his company name, his email address and an alternative spelling of his name. It said that all relevant staff involved in the processing of the file were contacted. When queried as to why three additional records were found that had not been found in earlier searches, it said that there may have been a misunderstanding at an earlier stage as to the scope of the search required.

In commenting on the searches carried out, the applicant said that he thought he had been provided with all the documents he needed in respect of this review. However, he then went on to ask a number of further substantive questions about how the Forest Service had carried out the review of his forestry application. As stated earlier, these types of issues fall outside the scope of a review by this Office.  

Having regard to the records that have been found and released to the applicant, as well as to the details of the searches carried out, it seems to me that, at this stage, all reasonable steps have been taken to find records relating to part one of the request.  

In relation to part four of the request, as stated earlier, just one record was identified and released to the applicant, a document titled: -�Appeals Process -� Forestry Inspector Standard Operating Procedure v2 April 2021-�. In his application for review, the applicant queried why the properties of this Standard Operating Procedure (SOP) document indicated that it had been created on 3 October 2022, rather than 21 April 2021 which is the date written in the body of the document. The Department initially said that it had reformatted documents to reflect the introduction of a new corporate style in 2022, by copying and pasting existing documents into new templates. The applicant queried why such a change of formatting was deemed necessary the day before the record was released to him. In response, the Department said that it had been saved into a folder for release under FOI and that this had an impact on the -�last modified date-� in the document-�s properties. An original copy of the SOP, with its properties showing it was saved in April 2021, was also issued to the applicant.

The applicant appeared to be of the view that the Department made alterations to the record before it was released to him. He was also unhappy with the explanations given in relation to the properties of the copy of the record provided to him and said that this was another example of the Department changing its position when he asked questions of the Forest Service.

Having carefully examined the records at issue, including the properties of the documents, and having had regard to the Department-�s submissions, I accept their explanations for the differing -�last modified-� dates as reasonable. I am satisfied that the text of both copies of the record provided to the applicant is the same and that it is the only record relevant to part four of the request. Given the seriousness of the applicant-�s suggestion that the Department may have materially altered the record before releasing it to him, which is an offence under section 52 of the FOI Act, I think it is important to state, for the avoidance of doubt, that I have found no evidence to support such a claim.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that it was justified, under section 15(1)(a), in refusing access to any further records relevant to parts one or four of the applicant-�s request, on the grounds that no further records exist or can be found.

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.

Emer Butler
Investigator