Whether the Council was justified in refusing access to various records relating to works, surveillance and bathroom facilities in a particular public library under section 15(1)(a) of the FOI Act

14 July 2023

Background

On 4 July 2022, the applicant submitted a request to the Council comprising 11 questions relating to the installation of electric doors and other works carried at a specified library. A number of the questions related to what she described as the surveillance and/or monitoring of toilet facilities including the library-�s drains and sewerage system. On 18 July 2022, the Council wrote to the applicant and informed her that her request was voluminous and asked her to reduce the scope. Following subsequent telephone conversations with the applicant, on 12 August 2022, the Council wrote to her setting out what it understood to be a summary of the applicant-�s request. On 18 August 2022, the applicant wrote to the Council, stating that she had -�no intention to add to or to amend any parts-� of her request. She indicated that she did not agree to the Council-�s rewording of her request and stated that she -�must insist-� that her -�request queries be answered as stated and in full-�.

On 19 October 2022, the applicant made a request for an internal review as she had not received a decision on her request. On 14 November 2022, the applicant applied to this Office as she had not received an internal review decision from the Council (OIC-132277-B1C4C6 refers). This Office contacted the Council requesting copies of the original decision and internal review decision of the public body. The Council informed this Office that a decision letter had been posted to the applicant.

The Council-�s decision letter dated 13 November 2022, essentially provided answers to parts 1-11 of her request. It also provided access to two records which comprised invoices relating to works carried out at the library in 2018. This appeared to be the Council-�s original decision, although it included details of the applicant-�s right to appeal to this Office, which would not apply in those circumstances. This Office informed the applicant that as she had received a decision, this Office-�s file in case OIC-132277-B1C4C6 was closed. She was also informed by this Office that it was open to her to make an application for review to this Office of what we considered to be the Council-�s internal review decision, if she was not satisfied. However, the applicant did not apply to this Office for a review at that stage. Instead, it appears the applicant treated the decision issued by the Council on 13 November 2022 as its original decision.

On 21 November 2022 the applicant wrote to the Council and asked additional questions on foot of the responses she received in its decision. The Council appears to have accepted this correspondence from the applicant as an internal review request. By email on 7 March 2023, although I note that the decision letter enclosed was dated 16 February 2023, the Council affirmed its earlier decision. I note that this letter incorrectly included details of a right to appeal to the Council internallyandto this Office. I would expect the Council to ensure that its decision letters in response to FOI requests include the correct appeal details in future.

By letter received on 14 March 2023, the applicant applied to this Office for a review as she was not satisfied with the Council-�s decision. On 29 June 2023, the Council released a briefing document to the applicant which it stated further expanded on the information sought by the applicant. It also provided links to records which are published on its website, which it considered to contain information sought by the applicant.

During the course of this review, the Investigating Officer informed the applicant of the details of the submissions received from the Council wherein it outlined the searches undertaken to locate records in this case and its reasons for concluding that no further relevant records exist or can be found. The applicant was invited to make further submissions on the matter. In her response she indicated that she remained of the view that additional records relating to her request exist.

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 to date 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 provided to the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant maintains that further records relevant to her request exist. The Council-�s position is that it has provided information and access to the only records that relate to her request. Accordingly, this review is concerned solely with whether the Council was justified in refusing to release additional records relating to the applicant-�s request on the ground that further records cannot be found or do not exist, under section 15(1)(a) of the FOI Act.

Preliminary Matters

For the benefit of the applicant, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note 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).

In her submissions to this Office, the applicant has made a number of comments regarding the companies contracted to carry out works at the library, as well as the surveillance she believes to be in place. I note that she forwarded copies of correspondence with the Council where she requested that it carry out a -�criminal investigation-� relating to one of the companies concerned, and asked it about a company contracted to carry out cleaning at the library. It is important to note, as a preliminary matter, that this Office 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 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 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 it undertook in an effort to locate relevant records and its reasons for concluding that no further records, other than those already released to the applicant, exist or can be found. As also noted above, the Investigating Officer provided the applicant with an outline of the Council-�s submissions as to why it did not hold any further records. 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.

Parts 1- 3 of the applicant-�s request

Parts 1-3 of the applicant-�s request related to the date of installation of new electronic doors in the library, the name of the company who installed the doors and the names of any other companies that were contracted to carry out ancillary works at the library at the relevant time. In its decisions, the Council informed the applicant that the doors were installed in May 2018 and it provided details of the company who had installed the doors, as well as the name of the Architect company contracted at the same time. It stated that any companies sub-contracted by the Architect would have been brought in directly by that firm.

The Council stated that the briefing document released to the applicant during the course of this review sets out the instructions for the relevant work. Additionally, it said that the purchase order for the work concerned was published in a quarterly report, which is available on the Council-�s website. The Council also stated that the details of the company contracted to carry out the works in the library was in a report which is publicly available on the Council-�s website, and that information sought by the applicant regarding contracts awarded to third parties would be publicly available as a public tender. The relevant links have been provided to the applicant.

Part 8 of the applicant-�s request

Part 8 of the applicant-�s request concerned the reason why there was no signage on a bathroom on the ground floor of the library. In its original decision, the Council stated that there was signage on all toilet doors in the library. There is no evidence before me to suggest that this is not the case.

Parts 4-7 and 9-10 of the applicant-�s request

The remaining parts of the applicant-�s request concern her apparent belief that the sewerage systems, drains, toilets and other parts of the library are being monitored or otherwise subject to surveillance by private security firms. She also seems to be of the view that there is a toilet on the third floor of the library, which the Council has stated is not the case. In any event, the general thrust of the Council-�s response to the applicant in relation to these parts of her request was that no such surveillance was being carried out. Nonetheless, I note that the Council attempted to answer these questions. Essentially, the Council-�s position is that the only -�surveillance-� taking place is by way of CCTV in the library, which is streamed to a secure server held by the Council.

In its submissions to this Office, the Council stated that it could not supply any further information on a non-existent toilet or non-existent surveillance cameras in sewerage drains/chutes. The Council-�s position is that it does not hold any records which contain the information sought by the applicant, as no such surveillance is being carried out.

In her submissions to this Office, the applicant indicated that she did not accept that the Council-�s decision to refuse to release additional records on the basis that no further records exist or can be found was justified. I note that, among other comments, the applicant argued that the Council-�s statement that it could not supply any further information, could be read as indicating that it does have further information. However, while she contacted this Office on a number of occasions in relation to this case, she has provided no substantive arguments or evidence to show that further searches are warranted.

I have carefully reviewed the Council-�s explanation as to why it concluded that no further records exist, as well as the applicant-�s comments. In the circumstances, I am satisfied that the Council has adequately explained why it concluded that no further records relating to the applicant-�s request exist or can be located. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for records on the ground that no further relevant records exist or can be located.

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 additional records relating to the applicant-�s request on the basis that they do not exist.

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