Whether the NTA was justified in refusing to additional records relating to the applicant-�s request access under section 15(1)(a) of the FOI Act

24 March 2023

Background

In a request dated 20 July 2022, the applicant sought access to -�any records both manually and electronically-� held by the NTA. In a decision dated 23 August 2022, the NTA stated that it was part granting the applicant-�s request. It identified and released 11 records in full, and one record in part on the basis that it was already available to the applicant (section 15(1)(i) of the FOI Act refers). On 25 August 2022, the applicant made an internal review request as he appeared to believe that the NTA had not issued an original decision. On 30 August 2022, the applicant made a further internal review request on the grounds that he had not received all records relating to his request. On 15 September 2022, the NTA issued an internal review decision which varied its original decision. The NTA released the twelfth record in full, which had originally been withheld in part. It also stated that no further records relating to the applicant-�s request existed. On 25 November 2022, the applicant applied to this Office for a review of the NTA-�s decision on the grounds that he had not received all records relevant to his request.

During the course of this review, the NTA located three additional records which it released to the applicant. In his submissions to this Office on 17 January 2023, the applicant referred to specific records which he considered to exist and had not been provided to him. These details were provided to the NTA for comment. It released copies of correspondence with the applicant on foot of these submissions. Following this, the Investigating Officer provided the applicant with details of the NTA-�s submissions wherein it outlined its reasons for concluding that additional records relating to his request did not exist. The applicant was invited to make further submissions on the matter, which he duly did.

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 FOI body in support of its decision. I have also had regard to the contents of the records located and released by the NTA. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant maintains that additional records relevant to his FOI request should exist, while the NTA-�s position is that it has released all relevant records. This is effectively a refusal to grant access to further records under section 15(1)(a) of the FOI Act. One record released during the course of this review contains redactions under section 37(1) of the FOI Act. However, I note that the applicant did not refer to the information withheld on this basis in his application to this Office for a review.

Accordingly, this review is solely concerned with whether the NTA was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request, on the grounds that they do not exist or cannot be found.

Preliminary Matters                                                                        

It is important to note, as a preliminary matter, that section 13(4) of the FOI 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 records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the FOI Act requires a consideration of public interest (not applicable in this case).

I note that during the course of this review the applicant expressed dissatisfaction with the actions of the NTA. 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 decision taken on the applicant-�s FOI request.

I also note that the applicant appeared to be of the view that one of the records released to him had been altered in some way. As I understand it, he compared a copy of a record released by the NTA to a copy he already held. The NTA indicated that it considers this to be a very serious allegation. While it is outside the scope of this review, the NTA has informed this Office that two copies of the same record could appear differently depending on how they were printed off from its systems. I have no reason to doubt this explanation.

Comment

For the benefit of the parties, I would also like to draw their attention to a number of relevant provisions of the FOI Act. Firstly, section 12(1)(b) provides that a request for records must contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. As such, an applicant should try to ensure that his or her request is sufficiently specific to accurately reflect the records sought. A vague or unclear request runs the risk of being misinterpreted or, indeed, of being refused if it does not contain sufficient particulars to allow for the identification of the record(s) sought.

Secondly, under section 11(2) of the Act, an FOI body must give reasonable assistance to a person who is seeking records under the Act in relation to the making of an FOI request. As such, if there is any doubt as to the precise nature of the records sought by an applicant, the FOI body should first seek to engage with the requester to clarify the request, thus avoiding possible issues at a later stage concerning the interpretation of the scope of the request.

It seems to me in this case that the applicant-�s request was very broad and could have been interpreted to cover all of the records held by the NTA. However, it appears that the NTA proceeded on the basis that the applicant solely sought records held on a file relating to him, although it is unclear how it came to that view. In its submissions to this Office, the NTA noted that the applicant-�s original request was -�particularly broad-�. It also stated that while it made -�every effort to identify all relevant records-� in its searches, that -�the additional information provided-� in the applicant-�s application to this Office, which was provided to the NTA as part of this review, -�shed some welcome new light on precisely what [the applicant] sought-�. It seems to me that much delay could have been avoided if the NTA had engaged with the applicant in order to clarify exactly what was sought when it received his request.

I also note that the applicant, in his correspondence with this Office, has referred to records which were created after the date of his FOI request and as a result are outside the scope of this review. It is open to the applicant to make a fresh FOI request to the NTA for these records, but if he chooses to do so, he should ensure that his request includes sufficient particulars in relation to the records sought to enable the record(s) to be identified by the NTA.

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. 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 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 a review by this Office is not concerned with access to records that a requester believes ought to exist.

Submissions by the NTA

During the course of this review the NTA released additional records to the applicant, including records which had previously been released to him in response to his request and three additional records which were located on foot of the applicant application to this Office. The NTA released two of the newly located records in full and the third in part on the basis of section 37 of the FOI Act. The NTA also provided details of the searches it said were undertaken in an attempt to locate relevant records in this case. The Investigating Officer notified the applicant of these details. While I will not set them out in full here, I can confirm that I have had close regard to the submissions made by both parties, including the search details provided by the NTA.

In its submissions to this Office, the NTA acknowledged that certain records had not been located during its initial searches. However, it stated that it was able to locate these additional records based on details relating to a specific incident included in the applicant-�s application to this Office. Its position is that no further records relevant to the applicant-�s request exist or can be found.

In its submission to this Office, the NTA stated that it used keywords such as the applicant-�s name and licence number to conduct searches of records, emails, and databases for any records relevant to the applicant-�s request. The NTA also stated that it consulted with the CEO of the NTA, the CEO-�s personal assistant and staff in the FOI and SPSV units. It stated that the staff members concerned searched electronic and hardcopy records for the specific correspondence referred to by the applicant.

The NTA stated that it held records relating to licence holders of Small Public Service Vehicles on a licence holder database (SPSV database). It said that it also maintains a database for customer complaints (CABS database). The NTA stated that records relating to complaints under its remit are held on the CABS database and linked to the relevant license holder on the SPSV database. However, it said that complaints received which are outside its remit are held in a separate electronic folder. As I understand it such complaints are not linked to license holders on the SPSV database.

Essentially, it appears that the NTA had initially only searched the SPSV database for relevant records in this case. The 12 records located on this database were released to the applicant at original and internal review stage.

The NTA-�s position, essentially, is that the incident referred to by the applicant in his application to this Office concerned a matter which did not fall under its remit and that consequently, the records were stored separately and were not identified when it searched the applicant-�s license holder file. The NTA stated that on foot of the details in the applicant-�s application for review, it searched the folders containing such complaints and located three records which were released to the applicant during the course of this review.

The Investigating Officer raised a query with the NTA in relation to specific correspondence referred to by the applicant, which had not been released in response to his FOI request. In response, the NTA essentially stated that these records were not considered for release as it was reasonable to assume that, since the correspondence originated from the applicant, he would already have had copies of these records. However, the NTA subsequently released copies of the correspondence concerned to the applicant during this review in the -�interests of clarity and transparency-�.

In relation to records of correspondence between a named staff member and the AGS concerning the applicant, the NTA-�s position is that the record released during the review is the only record held in this regard. The NTA-�s position is that searches of the files of all relevant staff members were carried out to locate records relevant to the applicant-�s request and that no further records were found.

Analysis

Having regard to the submissions provided by the NTA, which outline the searches that were undertaken to locate records relating to the applicant-�s request and to its explanation for concluding that no further records exist, I am satisfied that the NTA has taken all reasonable steps to locate additional records in this case. While I note that the applicant does not accept the NTA-�s explanation of its reasons for concluding that no additional records exist, there is nothing before me to indicate that further searches are warranted in this case.

Accordingly, I find that the NTA was justified in refusing access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTA-�s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant-�s request on the basis that no further records exist or can 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