Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant and her housing file from 2008 to date, on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

1 June 2023

Background

By way of background, I understand that the applicant in this case has been a Council housing tenant since 2008. I also understand that local authority housing tenants can apply to purchase the property they have been allocated from the relevant Council under certain circumstances.

In a request dated 14 March 2022, the applicant sought access to any record relating to her personally; -�all other record(s)-� created since 21 October 1998; and -�reason(s) for decisions made by the Council-� which affected her. In subsequent correspondence with the Council, not all of which has been provided to this Office, the applicant clarified that her request -�solely refer[red] to the housing department-� with effect from -�the date [she] became a tenant in 2008-�. In a late decision dated 26 July 2022, the Council part-granted her request. It identified seven files, which it released in part, subject to the redaction of third party personal information under section 37 of the FOI Act. The applicant sought an internal review on the basis that she believed that there were records missing from the files released. The Council subsequently affirmed its decision to refuse access to the records located in part and also stated that it had released all records it held relating to her request.

On 17 November 2022, the applicant applied to this Office for a review of the Council-�s decision.

During the course of this review, the applicant indicated that she was of the view that a number of records should exist which had not been released to her, including a copy of a purchase offer she said the Council indicated would issue to her in December 2021. The Investigating Officer provided the applicant with full details of the Council-�s submissions to this Office in relation to the steps undertaken to locate additional records in this case and its reasons for concluding that no further records exist. The Investigating Officer invited the applicant to make further submissions on the matter. While she has indicated that she remains of the view that further records exist which have not been released, she has provided no further submissions to this Office.

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 Council in support of its decision and to the applicant-�s correspondence with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

In her application to this Office, the applicant quoted a number of reference numbers relating to decisions and internal review decisions of the Council on her FOI requests. I note that this Office proceeded on the basis that she was seeking a review of the Council-�s decision relating to her request for access to her housing records from 2008 to present day (Council Reference FOI-026-IR refers). I also note that the applicant did not object to this.

During the course of this review, the applicant confirmed to this Office that she was not seeking a review of the Council-�s decision to withhold information under section 37 of the FOI Act. As noted above, the applicant remains of the view that additional records should exist relating to her request.

This review is therefore concerned solely with whether the Council was justified in refusing to release additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act.

Preliminary Matters                                                                       

It is important to note as a preliminary matter that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant-�s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of public interest (not applicable in this case).

It is also important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined to reviewing the Council-�s decision on the applicant-�s FOI request.

As set out above, the applicant originally made a three-part request, including a request for reason(s) for decision(s) made by the Council which affected her. I note that following the applicant-�s clarification of her request, the Council proceeded on the basis that she was solely seeking access to records. I also note that the applicant did not object to this in correspondence with the Council or with this Office. It is, of course, open to the applicant to make a new request for a statement of reasons to the Council under section 10 of the FOI Act. Should she decide to do so, she should clearly specify the decision(s) of the Council for which she is seeking a statement of reasons.

Analysis and Findings

Section 15(1)(a)

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 after all reasonable steps to ascertain their whereabouts have been taken. Our 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 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 a review by this Office is not concerned with access to records that a requester believes ought to exist.

As outlined above, the Council provided this Office with details of searches it said that it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. As also noted above, these details have been provided to the applicant for comment. While 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.

The applicant

In relation to specific records she considered to exist, the applicant-�s position, essentially, was that she had spoken to a member of staff of the Council by telephone in 2021, who she stated had informed her that a tenant purchase offer would issue the next day by post. She said that the person concerned quoted a specific figure. She said that she followed up by telephone as no letter was received from the Council, and that a second staff member confirmed the details previously provided by telephone. She is seeking access to the offer letter which she maintains she was told issued at that time, as well as additional correspondence which she believes is missing from the Tenant Liaison File and the Tenant Purchase File released to her. 

The Council

The Council stated that relevant hardcopy and electronic files, including shared and individual email accounts, were searched for records relating to the applicant-�s request. It also said that keywords, including variations of the applicant-�s name, were used for the electronic searches. The Council said that the applicant-�s Tenant Purchase File recorded that she made an initial application to purchase the relevant property in 2020, and a second application in 2021. The Council said that this file, including records up to and including 15 December 2021, was scanned and provided to the applicant. It also stated that all staff in the relevant area were consulted in an effort to locate additional files, but that no further records were found.

In relation to the telephone calls referred to by the applicant, the Council stated that its staff did not routinely create records of telephone calls unless it appeared -�necessary or prudent-� to do so in the circumstances. It stated that where notes or memos of phone calls existed, they had been provided to the applicant.

The Council-�s position is that no formal Tenant Purchase offer had been made to the applicant between 2008 and the date of her FOI request. However, it stated that there was adraftletter on the file dated 15 December 2021 that was not issued to the applicant. In its submissions to this Office, the Council stated that an offer did not actually issue to the applicant until 30 September 2022. I note that the draft letter dated 15 December 2021 was released to the applicant (in part) in response to her FOI request in this case.

Essentially, the Council-�s position is that all relevant records have been located and released, subject to the redaction of third party personal information, where appropriate.

In correspondence with this Office, the applicant did not accept that the letter of 15 December 2021 was the initial offer she referred to. She stated that two members of staff of the Council had said that an initial offer had issued by post earlier in 2021. She also stated that -�a Councillor-� had informed her that he had a copy of the earlier letter. The applicant believes that, at some stage, another record existed which has not been released or may have been destroyed, however she has not been able to submit any evidence to support her position. While the applicant remains of the view that she has not received a record containing what she views to be the actual initial offer made to her by the Council, there is no evidence before me to suggest that the Council holds any other letters of offer or that it has not conducted reasonable searches for records relating to the applicant-�s request. I also note that the records released include a reference to an intention that the letter of 15 December 2021 issue to the applicant, and a subsequent instruction that the letter be put on hold. I also note that there is a Post-It note on the file copy stating that the letter was on hold.

It is important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought. In the circumstances, I do not have any evidence or substantive argument to suggest that further specified searches are warranted in this case.

I have had regard to the details of the searches provided by the Council, to the records previously released to the applicant and to its explanation why additional relevant records do not exist. In the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional records on the ground that no further relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant-�s request on the basis that additional records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

Sandra Murdiff
Investigator