Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relevant to his request on the basis that no further records exist or can be found

16 November 2023

Background

On 7 April 2023, the applicant made a ten-part FOI request for records, "in original form and with all meta-data intact"�, relating to nine specified forestry applications and one parliamentary question. In a decision dated 3 May 2023, the Department part-granted the request. It identified 85 relevant records and released them with some personal information redactions under section 37(1) of the FOI Act. It refused to release any records relating to part 2 of the request under section 15(1)(a) of the Act on the basis that no such records exist or could be found. On 30 May 2023, the applicant sought an internal review of this decision, stating that far more records should exist than were released, giving specific examples. He also said that most the records provided "seem to have been altered and the original meta-data is unavailable"� and that no explanation was given for this. On 29 June 2023, the applicant applied to this Office for a review of the Department's decision. On 30 June 2023, the Department issued a late decision to the applicant following its internal review. It varied the original decision and released a further 60 records, again with some personal information redacted under section 37(1). On 5 July 2023, the applicant confirmed that he wished the review by this Office to proceed.

In the course of the review, the Department confirmed that it had located a further 116 email records.

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 correspondence between the applicant and the Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned only with whether the Department was justified, under section 15(1)(a), in refusing access to further records relevant to the FOI request on the grounds that no such records exist or can be found after all reasonable searches have been undertaken.

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. The Commissioner's 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 the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can 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.

I sought a submission from the Department detailing the steps taken to search for the records sought by the applicant and explaining the basis on which it had concluded that no further records existed or could be found. In response, the Department confirmed that it had located a further 116 email records. It said that it was prepared to release these records to the applicant, with some redactions.

In the circumstances, I simply cannot accept that the Department undertook all reasonable searches in processing the applicant's request. While it is possible that now, at this stage, adequate searches have been carried out, given the volume of additional records located, it would not be appropriate for this Office to act as a first instance decision-maker and direct their release. The Department said that it was ready to release them and has made redactions, where necessary. Given that it appears that the records are therefore not being released in their entirety, it seems to me that the only option available to me is to annul the original decision and to direct the Department to make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department's decision. 

Manner of access to records

In his FOI request, the applicant sought records "in original form and with all meta-data intact"�. In his application for internal review, and application for review by this Office, the applicant stated that they had not been provided in this format. He said that the records had been altered so that the meta-data was not visible and that the Forest Service appeared to have gone to "a lot of additional work to ensure that the meta-data are not visible"�. My understanding of what the applicant means by meta-data in this context is the properties of the documents provided which indicate, among other things, the date the document was created, the author, when it was last edited etc. In later correspondence with this Office in the course of the review, the applicant also stated that the records provided to him were "not searchable"�; I note that this was not part of the original FOI request.

Section 17(1) of the Act provides that an FOI body may grant access to a record by providing the requester with access in any one of a number of formats. Section 17(2) provides that where an FOI body decides to grant a request and the request is for access in a particular form or manner, such access shall be given in that form or manner unless the body is satisfied (a) that such access in another form or manner specified in or determined under subsection (1) would be significantly more efficient, or (b) that the giving of access in the form or manner requested would give rise to any one of a number of specified harms.

The applicant's position is that he made a request for the records to be provided in a particular format and that the records that were released to him were not provided to him in that format. As I understand it, it may not be possible to process electronic records without impacting on the metadata i.e. the properties are altered each time a document is opened, saved into a different folder, renamed etc. I stated this to the applicant in my communications with him and said that, in my view, there was nothing to suggest that what was provided to him was anything but copies of the records requested. Notwithstanding that, section 17(2) provides that when access in a particular form is requested, then that shall be granted apart from in the circumstances set out in sub-sections (a) and (b). In these circumstances, when issuing a fresh decision to the applicant, the Department should address the question of the manner of access to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision. I find that the Department was not justified, under section 15(1)(a), in refusing access to further relevant records, and I direct it to make a fresh decision on the 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.

Emer Butler
Investigator