Decision
Ms. X and Climate Change Advisory Council
From Office of the Information Commissioner (OIC)
Case number: OIC-147936-Q5T6N4
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URL: http://www.bailii.org/ie/cases/IEIC/2024/147936.html
Cite as: [2024] IEIC 147936
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Whether the CCAC was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to meetings between representatives from the CCAC and representatives of the data centres industry in the years 2021 to 2023, on the basis that no further records exist or can be found after all reasonable steps have been taken to locate them
2 August 2024
On 19 January 2024, the applicant made an FOI request to the CCAC for records (e.g. minutes, notes, emails, etc.) from meetings between representatives from the CCAC and representatives of the data centres industry in the years 2021 to 2023. On 19 February 2024, the CCAC released a number of records to the applicant, redacting personal information contained in the records. On 11 March 2023, the applicant made an internal review request, noting there are no notes or minutes of any of the meetings that took place. The applicant referred in particular to a meeting between the Chair of the CCAC and a representative of a named company. The applicant did not contest the redactions in the records released to her.
In its internal review decision dated 28 March 2024, the CCAC refused access to further records under section 15(1)(a) of the FOI Act on the basis that no further records exist or could be found beyond those already released to the applicant. The CCAC also provided the applicant with a summary of two meetings that had taken place, which it said was based on the recollection of staff who attended the meetings. The Council said that it was not common practice for meetings of this type to have notes or minutes recorded. On 4 April 2024, the applicant made an application for review to this Office. The applicant said it seems unusual that the head of a public body would meet a lobbyist and there were no notes of the meetings. The applicant also noted that the CCAC had provided her with a note of meetings based on the recollection of what was discussed.
During the course of this review, the CCAC released one additional record to the applicant, which was a calendar invitation to a meeting. The Investigating Officer subsequently provided the applicant with details of the Council's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, however no response was received from the applicant.
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 outlined above and to the submissions made by the CCAC during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the CCAC was justified, under section 15(1)(a) of the FOI Act, in refusing access to further relevant records relating to meetings between representatives from the CCAC and representatives of the data centres industry, on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to locate them.
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 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 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.
As noted above, the CCAC provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. 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.
In its submissions to this Office, the CCAC said there was no requirement to take notes or create a minute of the meetings. The CCAC said many of these meetings are listening exercises, where it hears matters relating to the particular sector or issue. In addition, the CCAC said that the Council publishes all activities online. It said this online register records the meeting date, the organization, the subject and the Council/Secretariat attendees.
The CCAC said that before it received this FOI request, there was no requirement to take notes or create a minute of meetings of this nature. The CCAC said that since this FOI request it has now instituted a requirement for a meeting note to be prepared following the conclusion of a meeting of this nature, to capture key information like dates, attendees and also a brief description of the meeting and any outcomes or actions to be noted.
In its submissions, the CCAC outlined the steps taken to search for any relevant records. It said that initially, upon receiving the applicant's FOI request, an email was sent to Secretariat Staff. This email set out the FOI request, and asked all staff to conduct searches of their emails in accordance with the FOI request and to identify any relevant meeting requests. Staff were advised that if they held no relevant records to also respond via email to confirm this. The CCAC said that all email responses from staff were saved to a file, and any identified records were then subsequently saved in a centralised file location. The CCAC said that searches were also conducted for relevant records in its info@climatecouncil.ie email account, which is a shared mailbox that it receives public submissions and is also the main email account for meeting requests. The CCAC said a search was also conducted of the Chair of the Council's email account that is used for conducting the Chair's council business. It said that the Chair also searched her personal email account.
The CCAC said that whilst carrying out searches a request for information was sent to Council members (both past and present). It said Council members were provided with an overview of the applicant's FOI request and were asked to search their emails in accordance with this request. The CCAC stated 12 responses were received with NIL returns. The CCAC also stated that the Chair of the Council was asked, by phone, to confirm if she held any records relevant to the applicant's request, to which the Chair confirmed that she did not.
Along with the above searches, the CCAC stated that its 'Dub File', which is the main repository of Council Secretariat files, was also searched. It said that particular focus was given to the Activity and Media Log, which is where all activities of the Council and Secretariat are recorded, and also to the CCAC Correspondence media and meeting requests. The CCAC also said that its general Secretariat folder on OneDrive, which houses Secretariat folders and files was also searched for relevant records.
As noted above, the CCAC explained that meetings of the type the applicant identified were used as listening exercises. It stated that meetings of this type gave each party the opportunity to share their insights into issues that they felt pertained to the work of the CCAC. It said that there were no notes for these meetings, as the meetings were not Council meetings and as such have no requirement for minuting or note taking. The CCAC stated that no actions arose from the meetings, and that no Council positon was taken as a result of the meetings. As noted above, the CCAC said that going forward it will now be standard procedure for a minute of all future meetings with external stakeholders to be recorded.
The CCAC said that in order to try and provide further details to the applicant regarding the meetings she had identified, a recollection of the two meetings was provided in its internal review decision. The Investigating Officer asked the CCAC about searches conducted by the individuals who had provided their recollection of the meetings. The Investigating Officer asked whether these staff had any records or handwritten notes of the meetings that supported their recollections. The CCAC said that the individuals who attended the meetings were asked to check for any handwritten or hard copy notes on their files. It said that both confirmed that no such records existed. The CCAC said that the Secretariat member and the Council Chair, who had attended these meetings, had an MS Teams call together to discuss their recollections of the meetings and drafted the recollection note provided to the applicant from memory.
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. 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. We do 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. Furthermore, the FOI Act does not require FOI bodies to create records where none exist, apart from a specific requirement to extract records or existing information held on electronic devices that is not relevant in this case.
While the applicant may find it somewhat unusual that no minutes or notes of these meetings were recorded, it is important to note that this Office has no role in examining how public bodies carry out their functions generally.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the CCAC has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records exist or can be found. In the circumstances, I find that the CCAC was justified in refusing access to further records relating to the applicant's request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CCAC's decision to refuse access to further records relating to the applicant's request under section 15(1)(a) of the FOI Act.
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