Whether the Committee was justified in refusing access to records relating to a review of District Court Costs under section 15(1)(a) of the FOI Act

16 February 2023

Background

In a request dated 21 September 2022, the applicant sought access to copies of all documentation pertaining to a review of the current District Court scale of costs from 2015 to date. The request was to include copies of all notes, minutes, memoranda or any other documentation in existence in relation to the exercise of the Committee-�s legal obligations pertaining to the revised fee scale considerations together with copies of any input from any third parties or the Minister for Justice pertaining to any such reviews. In a decision dated 18 October 2022, the Committee identified certain records which date between 2019 and 2022 as relevant to the applicant-�s request. It refused access to these records under sections 15(1)(i), 29(1) and 31(1)(a) of the FOI Act. On 20 October 2022, the applicant requested an internal review of the Committee-�s decision. On 18 November 2022, the Committee affirmed its original decision. On 21 November 2022, the applicant applied to this Office for a review of the Committee-�s decision.

In his application to this Office, the applicant stated, -�I am limiting my FOI request in respect of the non-review which should have taken place in 2018.-� The Committee did not locate any records which relate to a review of District Court costs that took place in 2018. It effectively refused access to such records under section 15(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. This Office requested the Committee respond to detailed queries in relation to searches undertaken to locate all records within the refined scope of the applicant-�s request. The Committee-�s response to these queries was provided to the applicant who made a submission in reply.

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 applicant and to the submissions made by the Committee in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to whether the Committee was justified under section 15(1)(a) of the FOI Act in refusing access to records which relate to a review of District Court Costs in 2018.

Preliminary Matters                                                                                                         

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall generally 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 Act requires a consideration of the public interest.

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis may be limited in places.

Analysis and Findings

Section 15(1)(a) Adequacy of Searches

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. Our role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that I 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.

In his application to this Office, the applicant states that under District Court Rules, the Committee are obliged to review District Court costs every three years. He states that there was a review in 2015 and that further reviews ought to have taken place in 2018 and 2021.  He says, it is his understanding, that the Committee failed to carry out a review in 2018 and he wishes to receive copies of any documents concerning a review of District Court costs in 2018.

During the review process, this Office requested the Committee respond to detailed queries in relation to searches undertaken to locate all records within the scope of the applicant-�s request as refined and to respond to detailed queries in relation to its record-management practices. The Committee-�s response to these queries was provided to the applicant and is set out in summary here.

In its submissions to this Office, the Committee states that after it received the request for focused submissions, it conducted a fresh review of its original search for records. It says it reviewed the methodology used in its original searches. The Committee says the terms -�District Court Scale of Costs-� and -�Costs-� were used in the original electronic search of records. It states that it expanded the search terms to include -�District Court Rules Committee-�.  The Committee states that it used the expanded search terms in the electronic examination of records and following these further searches it located two additional records. The Committee released these records to the applicant during the course of the review, with the redaction of any personal information of an identifiable individual contained therein. The Committee states that its legal advisors have also confirmed they have no records relating to the District Court Scale of Costs from 2018 and their first records concerning the revision of costs date from 2020. The Committee says it is satisfied that it has identified all records within the scope of the refined request.

Following receipt of the additional search details, the applicant provided further submissions to this Office. In his further submissions, he states that what he is seeking from the Committee is a clear concise letter confirming that no review took place in 2018 and that the only review which is being carried out is the current review. He says it is his belief that documentation does exist and is being deliberately withheld. He says he bases this on personal information and in view of the fact that when he made the initial application it was refused on the basis of not being in the public interest. He states that his appeal was also not successful and if records had not existed the Committee would have stated so.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

I understand the applicant is dissatisfied that the Committee did not carry out a review of District Court Costs in 2018. However, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally. I cannot therefore make any findings on how the Committee carried out its functions in relation to reviewing District Court Costs. It is my view that the Committee has provided reasonable responses to the points raised by the applicant. The Committee has provided the applicant with a letter which states -�-�in relation to the non-review of the District Court Scale of Costs which should have taken place in 2018.  We acknowledge there was no substantive review in 2018.-� The Committee has stated to this Office that a substantive review of District Court Costs did not in take place until 2020-2022. The Committee did rely on the public interest in refusing access to records following the applicant-�s request, however those records date from 2019 to 2022. The Committee did not refuse access to records which fall within the scope of the applicant-�s refined request on the basis of the public interest.

Taking into account the search details provided by the Committee, its responses to the applicant's points, and to this Office's queries, I am satisfied that the Committee has taken all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the refined request. In light of the above, I find that section 15(1)(a) of the FOI Act applies on the ground that no further relevant records exist or can be found after reasonable searches were conducted.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Committee's decision, I find that 15(1)(a) of the FOI Act applies to the applicant-�s FOI 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.
 

Jim Stokes
Investigator