Whether RTÉ was justified, under section 15(1)(a) of the FOI Act, in refusing access to a record of the identity of the person who made a telephone call to the applicant on the basis that no record exists that contains the information sought

29 January 2024

Background

On 29 June 2023, the applicant requested the name of the person from RTÉ investigates legal team who made a telephone call to him from an unknown number on a specific date and time. As no decision had issued to the applicant within the four week time limit prescribed in the FOI Act, the applicant requested an internal review on 1 August 2023.  On 2 August 2023, RTÉ refused the applicant's request under section 15(1)(a) of the FOI Act on the basis that the record sought does not exist. RTÉ said that the FOI Act concerns access to records that exist and is not about answering questions or providing information. On 24 October 2023, RTÉ affirmed its original decision. On 25 October 2023, the applicant applied to this Office for a review of RTÉ's decision.

During the course of this review, the Investigating Officer sought submissions from RTÉ regarding its decision to refuse the applicant's request. The Investigating Officer provided the applicant with the details of RTÉ's submissions wherein it outlined its reasons for concluding that it does not have a record of the identity of the caller. The applicant was invited to make further submissions. At the time of writing, no further submissions have been received.

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 referred to above, including the submissions made by RTÉ.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether RTÉ was justified, under section 15(1)(a) of the Act, in its decision to refuse the identity of the person who called the applicant at the time and date in question on the basis that no record exists that contains the information sought.

Preliminary Matters

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. 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 the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.  

Analysis and Findings

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 and to decide whether the 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 I have outlined above, RTÉ provided this Office with details of its reasons for concluding that no records exist in this case. The Investigating Officer provided the applicant with these details. 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, RTÉ's said that there are no records/documents/note/records/logs of any kind held by it that would provide the information the applicant is seeking. RTÉ said the FOI Act is about releasing records which contain the information sought. RTÉ said it is not about answering questions except where a record exists which contains the answer. RTÉ said that it does not record phone calls, nor does it monitor what numbers are called, nor does it monitor mobile phone calls made by staff. RTÉ said, even if it were possible to establish if a call was made from a desk phone it would not identify the caller which is what the request is seeking. It said, many phones in RTÉ are in open plan offices while offices are not locked during office hours. RTE said if the call came from a mobile phone, again there would be no record held by RTÉ which would identify the caller.

Additionally, RTÉ said that in his FOI request, the applicant stated the caller was from part of the organisation that does not exist (the RTÉ Investigates legal team). RTÉ said there are approximately fifty personnel in the Current Affairs team of which the Investigations unit is a part, as well as around fifteen staff members in the legal team. RTÉ said that staff in the Investigates Unit fluctuates depending on workload, so it is the case that individuals in the Unit at the time of the call are no longer working for RTÉ. 

In conclusion, RTÉ noted that the applicant sought the identity of a person he said called him at a specific time. It said the only way to establish the certainty of a caller under FOI would be if a record exists which would do so. RTÉ said the identification of a call coming from a particular landline would not establish the identity of the caller. RTÉ said it does not monitor phone calls, either landline or mobiles, which would allow for the identification of the person who made the call. Accordingly, RTÉ said it refused the applicant's request under section 15(1)(a) of the FOI Act as a record of the information sought does not exist.

It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. This Office does not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that 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. As noted above, the FOI Act does not require RTE to create a record to answer the applicant's query where no record exists. Given RTÉ's explanation that it does not hold a record of the caller sought by the applicant, and in the absence of evidence to suggest otherwise, it seems to me that RTÉ has adequately explained why no relevant records exist or can be found. In the circumstances of this case, I find that RTÉ was justified, under section 15(1)(a) of the FOI Act, in refusing access to the identity of the caller sought by the applicant on the ground that no record containing that information exists.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm RTÉ's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act.

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.
 

Richard Crowley
Investigator