Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the decision to cancel a tender process on the grounds that no further records exist or can be found after all reasonable steps have been taken to locate them

5 March 2024

Background

This case has its background in a previous decision made by an Investigator in this Office on 28 October 2022. In case OIC-119986-C3H0N9, the Investigator found that the Council had not taken all reasonable steps to search for records relevant to the applicant's request, and remitted it to the Council to undertake further searches. The records at issue in the case concerned the Council's decision to cancel a tender process for the sale and redevelopment of a specified hotel/piece of land ("the Hotel"), further to the applicant issuing legal proceedings against the Council in relation to that process.

On 21 December 2022, the Council issued a fresh decision to the applicant. It said that having carried out further searches, it was releasing some additional records with small amounts of personal information redacted under section 37 of the FOI Act. It said that some of the records identified in the new searches were the incidental forwarding of correspondence that had already been decided upon in the original decision-making process. The schedule prepared by the Council showed that six additional records were being released or part-released, and that the remaining 15 were refused under section 31(1)(a) on the grounds that they were legally privileged. The applicant sought an internal review of this decision on 24 January 2023. In the request, the applicant pointed to the comments made in the previous decision by this Office on the adequacy of searches for records specifically relating to the Chief Executive and his involvement in the matter at issue. It also sought a review of records refused under section 31(1)(a). On 14 February 2023, the Council affirmed its decision.

On 12 July 2023, the applicant applied to this Office for a review of the Council's decision. In the course of the review, the Council provided submissions to this Office on the searches undertaken for relevant records, details of which were provided to the applicant for comment. Further submissions were duly received from the applicant and the points raised therein were communicated to the Council which then carried out an additional round of searches using amended search term. Having carried out these searches, it said that no new records were found. The Council also provided some further information on the staff members/departments that it expected might hold relevant records, the process involved in making the decision to cancel the tender process, records management and storage, and the processes involved in preparing and communicating responses to questions raised by Councillors. The applicant was invited to comment on this additional information but no further comment has been received to date.

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 and by the applicant, and to further correspondence with the parties, as well as to the exchanges set out above. 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

In the application for review, the applicant queried the refusal of record 19 under section 31(1)(a). In its submissions, the Council said that it accepted that the content of this record was not legally privileged. However, it said that as it related to a third party, it would need to "obtain their views on a potential release". Having examined the record, I explained my view to the applicant that it did not directly relate to the Council's decision to collapse the tender process and in those circumstances it seemed to me to fall outside the scope of the FOI request and I proposed to give it no further consideration. I invited the applicant to comment on this but it did not do so. Accordingly, I consider record 19 to fall outside the scope of this review.

In correspondence with the applicant, it was agreed that this review would not consider the small amounts of information redacted by the Council under section 37(1) of the FOI Act in the six additional records released in part.

The applicant is of the view that additional records relating to the request should exist, and should be released, particularly in relation to specific meetings of Councillors and questions answered by the Chief Executive at these meetings. The Council's position is that all relevant records have been identified. This is effectively a refusal, under section 15(1)(a) of the FOI Act, to release further records. This review is therefore concerned with whether the Council was justified, under section 15(1)(a), in refusing access to further records relevant to the applicant's request.

Analysis and Findings

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. I must also 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.

As noted above, the Council provided this Office with details of the searches it said that it undertook to locate relevant records. Its position is that all reasonable steps have been taken to locate records relevant to this FOI request and that no further records exist. As also noted above, I provided the applicant with a summary of the Council's submissions. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

The Council listed the various departments and staff members that were contacted as part of the search process and said that responses were received from each of them, with any records located considered and scheduled. It said that electronic searches were carried out on shared drives and personal folders, and that searches were carried out of physical records held in offices/folders.

In its submissions, it said that the search terms used were the Hotel name combined with collapse, cancellation, termination, project, process, withdrawal, abandonment. In response to comments from the applicant, the Council agreed to carry out a further round of searches, this time using just "[Name]" rather than "[Name] Hotel" in combination with the 'root' version of the other search terms i.e. instead of "cancellation" it used "cancel" which would capture all versions of the word cancel, cancellation, cancelling, cancels etc as well as any variations on the way that the Hotel was referenced. The Council said that having carried out these searches, it then compared the documents found to those already identified in previous searches. It said that further to carrying this out, no new records were found.

In relation to the specific issue of whether there should be more relevant records held in the Chief Executive's office, given that he was asked and answered questions from Councillors relating to the cancellation of the tender process, the Council was asked to explain the process, in general, for dealing with such questions. In summary, it said that Councillors can submit questions and motions in advance of meetings, that motions are discussed at the meetings but that questions are not. It said that the questions are referred to the relevant section/department of the Council to prepare a response, that these responses are returned to the secretariat in the Chief Executive's office, and the replies are then emailed to the relevant Councillors. The Council described the role of the Chief Executive's office in this process as essentially administrative. On the specific questions answered by the Chief Executive on the cancellation of the tender process, the Council said that responses to the questions were provided by the Senior Executive Officer responsible for the project, who sought advice from the Law Agent as to the appropriate response. It said that these email records were scheduled and refused for release in the earlier FOI request, whose refusal was affirmed by this Office in the previous review. I understand that these records were refused on the basis of legal advice privilege.  

I asked the Council to confirm whether the list of staff members/departments contacted and asked to carry out searches, comprised all relevant persons/departments that would have been, or were, involved in decision-making relating to the Hotel project, including the decision to cancel the tender process, and whether there were any other individuals or departments that might hold records relating to the collapse decision. The Council said that it was confident that no other departments would hold records relating to the process or its collapse. It said that the Hotel came under the remit of the Planning and Property Development Department and that a meeting was held on a specified date via Microsoft Teams to discuss the matter of the legal proceedings issued and the potential effect of the proceedings on the disposal of the property to the preferred bidder. It said that the meeting was attended by representatives of the Planning and Property Development Department, the Law Agent and the external legal firm that was engaged to provide counsel on the legal proceedings. It said that the meeting was not recorded electronically nor were minutes taken. It said that at the meeting, the matter was carefully considered and the decision was taken that the proposed disposal of the land would not proceed, and that a letter outlining this decision would be drafted and sent to all parties.
It said that this was the only meeting held for this purpose. It said that the Assistant Chief Executive of the Planning and Property Development Department, was in attendance as the most senior official of this Department and took the decision to collapse the process, under a power delegated to him by the Chief Executive under the Local Government Acts.
I have carefully considered the submissions made by the Council and by the applicant. It is important to acknowledge that further to the original FOI request being made, the Council identified over 100 relevant records, and that the question before me is whether, at this stage, all reasonable steps have been taken to search for any further relevant records. On balance, it seems to me that, at this point, a thorough search has been undertaken using appropriate search terms and asking the relevant individuals and departments within the Council to look for records. While the applicant might expect that more records should exist, particularly involving the Chief Executive, the Council has provided an explanation of the Chief Executive's involvement, or lack of involvement, in the decision to cancel the tender process, which seems to me to be consistent with the records identified. I note also its description of the process used for the answering of the Councillors' questions by the Chief Executive in general, which seems to me to be a reasonable explanation for why further records relating to these questions were not held in the Chief Executive's office. I note the Council's position that it was the Assistant Chief Executive of the Planning and Property Development Department who took the decision to cancel the tender process, and that he was one of the staff members contacted and asked to search for records. It is outside the scope of this review and the remit of this Office to comment on the Council's decision-making and administrative processes. For these reasons, I find that the Council was justified in refusing to release any further records on the basis that such records do not exist or cannot 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 Council's decision. I find that it was justified, under section 15(1)(a) of the FOI Act in refusing to release further records relevant to the applicant's request, on the grounds that no further records exist or can be found.  

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