Whether the Council was justified in refusing access, under sections 15(1)(a) and 15(1)(i) of the FOI Act, to further records relating to a waste facility review application for a specific waste company (Company X)

30 May 2023

Background

By way of background, I understand that the applicant made a number of FOI requests to the Council seeking access to various records relating to Company X and other waste companies and their dealings with the Council.

In a request dated 24 October 2022, the applicant sought access to various records relating to court proceedings issued against Company X, including the following:

• A copy of the court proceedings issued against Company X and the record number of the case,
• The name of the staff member who stamped and initialled Company X-�s review application,
• All records relating to a named Council waste regulation officer (Mr Y), and his dealings with the waste facility review application by Company X,
• Details of the Council-�s staff member who changed the file number on Company X-�s permit, the date of the change and all records relating to this change.

On 22 November 2022, the Council issued a decision refusing the applicant-�s request, enclosing two letters from the Planning and Environment sections of the Council, addressing separate parts of his request. In a letter dated 11 November 2022, the Planning section provided the case number of the relevant court proceedings, but said that as the matter had proceeded to prosecution stage, it refused access to records relating to the first part of his request on the basis of section 32(1)(a)(iv) of the FOI Act. In a second letter dated 21 November 2022, the Environment section of the Council numbered the remaining parts of the applicant-�s request as Q1, Q2 and Q3 respectively. It refused access to records relating to Q1 and Q2 on the basis of section 15(1)(i), and records relating to Q3 on the basis of section 15(1)(a) of the FOI Act.

On 3 December 2022, the applicant requested an internal review of the Council-�s decision on parts Q2 and Q3 of his request. On 21 December 2022, the Council upheld its original decision on the same basis.

On 25 January 2023, the applicant applied to this Office for a review of the Council-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Council-�s submissions where it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records existed. The Investigating Officer invited the applicant 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 Council in support of its decision and to the applicant-�s submissions and correspondence with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

The Council refused the applicant-�s request at internal review stage under sections 15(1)(a) and 15(1)(i) of the FOI Act.

During the course of this review, the Council located two additional records relating to the applicant-�s original request in this case, as well as case reference number OIC-137111-X2T6C0. I am satisfied that one record relates to the court proceedings, and accordingly, is not within the scope of this review, as the applicant did not seek a review of the Council-�s decision on records relating to that part of his request. I am satisfied that the second record relates to the third part of the applicant-�s request and is within the scope of this review.  The Council has indicated that it is willing to release the second record to the applicant. If it has not already done so, I would expect it to make arrangements to release this record now.

The Council-�s position is that all relevant records have now been released to the applicant and that no further relevant records exist.

The applicant-�s internal review request solely related to the Council-�s decision on parts Q2 and Q3 of his request -� i.e. records relating to a named Council waste regulation officer (Mr Y), and his dealings with the waste facility review application by Company X (Q2); and records relating to the details of the Council-�s staff member who changed the file number on Company X-�s permit, the date of the change and all records relating to this change (Q3). While I note that the Investigating Officer provided some details of the Council-�s position on records relating to part Q1 and the applicant subsequently raised some questions about this of his request, I am satisfied that the Council-�s decision on this part of his request is not within the scope of this review.

Accordingly, this review is solely concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to additional records coming within the scope of the applicant-�s request, other than those already released, and in refusing access to further records under section 15(1)(i) on the basis that they had already been released to the applicant.

Analysis and Findings

Section 15(1)(a) -� Q3

The Council refused the applicant-�s request for access to records relating to a named Council waste regulation officer (Mr Y), and his dealings with the waste facility review application by Company X under section 15(1)(a) of the FOI Act (part Q2 of his request). The applicant was of the view that additional records should exist relating to this part of his request. Furthermore, although the Council relied on section 15(1)(i) to refuse access relating to part Q3 of the applicant-�s request, he was also of the view that records should exist relating to the amendment to the relevant file number.

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 their decision and 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 can arise where records are lost or simply cannot be found. What the FOI Act requires 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. Furthermore, it is open to this Office to 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 Council provided this Office with details of the searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further records exist or can be found. 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.

In its submissions to this Office, the Council said that it searched relevant areas including hardcopy waste facility permit files, email files and electronic records held in the Environment section. The Council also stated that Mr Y searched his electronic and hardcopy files for relevant records. The Council further stated that the officer concerned had searched his work notes and diary for relevant records in response to an earlier request by the applicant.

As noted above, the Investigating Officer outlined the Council-�s submission to the applicant, and invited him to comment. In his response, the applicant queried the absence of additional records including records of WhatsApp messages, emails, phone records and other electronic or hardcopy records. The applicant was of the view that as the official concerned was the -�person in charge-� of waste permits, that further records relating to the processing and validation of such applications should exist. He referred to a specific letter dated 14 December 2016 in support of his view that additional records existed which had not been released.

The applicant was also of the view that a waste permit number could not be altered -�without [the Council] knowing the date it was changed or the identity of the person who changed it-�. He stated that each staff member had their own login and his view was that -�[o]nce new data [was] inputted into the system it shows on dated stamped and timed with initials-�.

The Investigating Officer provided the applicant-�s comments to the Council and invited it to comment. In its response, the Council stated that it had requested the phone records of the employee in question, for both office phone and mobile phone between September and December 2016. However, it stated that mobile phone records are only kept for a two-year period and were no longer available at the time of the applicant-�s request. It also stated that at the time of the request, the Council did not record internal phone calls between staff members. In relation to queries about WhatsApp messages, the Council stated that it -�does not hold text message content-� for staff.  

Regarding the letter dated 14 December 2016, the Council-�s position was that all records related to this letter were previously released to the applicant and that no further records relating to it exist. In this regard, I note that the applicant made a separate request in January 2023 for access to records relating to the letter concerned. The Council-�s decision in that case is the subject of a separate application for a review to this Office, and a decision will issue in that case in due course (OIC Case OIC-137111-X2T6C0 refers).

In response to the applicant-�s comments regarding part Q3 of his request, the Council said that its processes in relation to changing a permit number differed from that described by the applicant. Essentially, the Council-�s Assistant Waste Regulation Officer said that the system of assigning a permit number was manual and that logs of changes were not electronically generated. The Council-�s position is that there are no records identifying which staff member updated the permit. I note its comment in the internal review decision that the two file references quoted in the applicant-�s request referred to a Waste Facility File and a Waste Facility Review File. This appears to imply that the references cited by the applicant relate to separate files, rather than one, which was changed, although I also note that the Council did not elaborate on this point.

On the matter of whether the Council holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. 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(s) sought.

I have reviewed the Council-�s submissions in support of its decision, as well as the applicant-�s comments and the Council-�s responses. I note that the applicant has made a number of FOI and AIE requests for access to various records relating to the matters concerned and that the Council has released a number of records to him in response. I also note that the Council located two additional records during the course of this review. However, in the circumstances, I am satisfied that the Council has adequately explained why it concluded that nofurtherrecords relating to the applicant-�s request exist or can be located in this case, other than those already released. Accordingly, I find that the Council was justified in refusing to grant access to additional records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be located.

Section 15(1)(i) -� records already released (Q2)

The Council refused access to four records in this case on the basis of section 15(1)(i) of the FOI Act.  

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.

In its submissions to this Office, the Council provided copies of previous AIE/FOI requests made by the applicant, as well as details of the records released in relation to each request. I note that the Investigating Officer did not refer to section 15(1)(i) in her letter to the applicant on 16 March 2023. However, I also note that she set out the Council-�s position that records relating to part Q2 of the applicant-�s request had previously been provided to him. I further note that in his response, while the applicant indicated that he remained of the view that additional records should exist relating to his request, he did not dispute that some records within the scope of his request had previously been released. He stated, in relation to records concerning the named official, that -�only a small sample of records had been released-�. He did not, however, dispute the Council-�s position that it had previously released the four records listed on the record schedule relating to this part of his request in response to two earlier requests.

In the circumstances of this case, I am satisfied that the Council has provided adequate evidence in support of its decision to refuse access to the four records located relating to part Q2 of his request on the basis that they had previously been released to the applicant, and were available to him. In the absence of any argument to the contrary, I find that the Council was justified in refusing, under section 15(1)(i) of the Act, the applicant-�s request for these records on the ground that they had already been released to him.

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 sections 15(1)(a) and 15(1)(i) of the FOI Act, to additional records relating to the applicant-�s 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.
 

Sandra Murdiff
Investigator