Decision
Mr Y and Cork County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-149303-W7M9C6
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Cite as: [2024] IEIC 149303
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Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain records relating to homelessness assessments and/or the provision of emergency accommodation on the ground that the records sought do not exist
27 November 2024
On 23 February 2024, the applicant submitted a broad 13-part request to the Council for records relating to homelessness assessments and/or the provision of emergency accommodation. Having regard to the issues arising in this case, I believe It would be useful to set out the full details of the request made, as follows:
(Parts 1 and 2 of the request were for procedural/guidance type records)
1. Copies of any records, including guidance documents, manuals, policies or procedures that have been relied upon or provided to employees of the Council in relation to conducting homeless assessments,
2. Copies of any guidance documents, training materials or other records pertaining to training that have been provided to members of housing or homeless teams within the Council within the past 6 months,
(Parts 3 to 13 of the request were for copies of correspondence in the six months preceding the request between certain identified parties related to the carrying out of homeless assessments and/or the provision of emergency accommodation)
3. All correspondence between the Chief Executive and the Director of Services for Housing,
4. All correspondence between the Chief Executive and the management of the housing and/or homeless sections,
5. All correspondence between the Chief Executive and the staff members of the housing and/or homeless sections,
6. All correspondence between the Chief Executive and the County and City Management Association (the CCMA),
7. All correspondence between the Chief Executive and the Local Government Management Agency (the LGMA),
8. All correspondence between the Chief Executive and any third-parties,
9. All correspondence between the Director of Services for Housing and the management of the housing and/or homeless sections,
10. All correspondence between the Director of Services for Housing and the staff members of the housing and/or homeless sections,
11. All correspondence between the Director of Services for Housing and the CCMA,
12. All correspondence between the Director of Services for Housing and the LGMA, and
13. All correspondence between the Chief Executive and any third-parties.
On 21 March 2024, the Council refused parts 1 to 3 and 9 to 12 of the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist. It said the Chief Executive's Office would deal with the remaining parts. It appears a second decision issued from the Chief Executive's Office on 26 March 2024 wherein those parts of the request seeking access to the Chief Executive's correspondence were also refused under section 15(1)(a).
On 27 March 2024, the applicant requested an internal review of the Council's decision. On 14 May 2024, the Council issued a late internal review decision, affirming the refusal of the request under section 15(1)(a). On 23 May 2024, the applicant applied to this Office for a review of the Council's decision.
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 both the applicant and the Council. I have decided to conclude this review by way of a formal, binding decision.
I note that parts 8 and 13 of the request are identical, in seeking access to all correspondence between the Chief Executive and any third-parties. Given that part 13 was included under a heading "Correspondence to and from the Director of Services for Housing", it may well be that the applicant intended the correspondent identified in part 13 to be the Director of Services as opposed to the Chief Executive. However, he did not do so. Accordingly, I have excluded part 13 of the request from the scope of this review.
This review is therefore concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to parts 1 to 12 of the applicant's request for certain documentation and correspondence in relation to conducting homelessness assessments and/or the provision of emergency accommodation on the ground that no relevant records exist.
In processing the applicant's 13-part request for records, the Council said it divided the decision-making process between (i) the Housing Directorate for the requested documents and correspondence to and from the Director of Services for Housing (parts 1 to 3 and 9 to 12) and (ii) the Corporate Services Directorate for correspondence to and from the Chief Executive (parts 4 to 8 and 13).
Parts 1 and 2 of the request concern guidance documents, manuals, policies or procedures, and related training materials, in relation to conducting homeless assessments.
The Council's Housing Directorate said such guidance documents, manuals, policies or procedures, and training materials do not exist. It said the Council's assessments are currently guided by the Housing Act 1988 rather than by such supporting documentation.
Parts 3 and 9 to 12 of the request concern correspondence between the Director of Services for Housing and various identified parties related to the carrying out of homeless assessments and/or the provision of emergency accommodation. The parties in question were the Chief Executive, management and staff of the Council's housing and/or homeless sections, the CCMA, and the LGMA.
The Council said no relevant records exist. The Council said the Director of Housing and the Senior Executive Officer of the Social Operations Unit, which includes the Homeless Unit, were contacted and both confirmed that no such records ever existed. This Office's Investigating Officer asked the Council to indicate if searches were carried out in an effort to locate relevant records. In response, the Council said that no searches were undertaken as the Director of Housing and the Senior Executive Officer of the Social Operations Unit were certain that they had not received or sent any correspondence of the type sought.
The Investigating Officer informed the applicant of the details of the Council's submissions and invited him to comment. In response, the applicant argued that the Council had taken insufficient steps to search for relevant records. He said;
"-¦ it does not appear in compliance with common sense that two senior managers would know at a glance that no correspondence took place related to these incredibly broad matters, being homeless assessments and emergency accommodation, with any single member of staff within the housing and homeless sections over the previous six months".
He added;
"[t]his would suggest that there was no direction to junior staff members, no discussion on processes, no engagement with existing providers of emergency accommodation, no emails related to seeking to contract new providers of emergency accommodation as homeless figures increase, no emails to prepare the monthly official homeless statistics provided to the Department of Housing, and no emails related to the South West Regional Homelessness Action Plan or Consultative Forum. Indeed it would also suggest that no internal meetings or meetings with the Consultative Forum have ever been minuted or discussed by email during the period of the Request."
The applicant suggested that certain available evidence suggests that relevant records should exist. He noted that homeless statistics are provided to the Department of Housing on a monthly basis and reported nationally and suggested that some level of internal records or correspondence related to the preparation of same would have been caught had searches been carried out. He said there are many media reports for the period in question that focus on the numbers of persons accessing homeless services or undergoing homeless assessments. He suggested that any such reports were likely accompanied by requests for comment from the local authority in question, but despite such extensive literature the Council seems to be sufficiently certain that no such correspondence took place and that there is no need to search for the same. He said it also suggested that no member of the Council's housing staff ever discussed news articles related to their work during the relevant period.
The applicant further said that the organisation he represents has regularly engaged with the Council on matters relating to emergency accommodation and homeless assessments and based on many of these engagements, he disputes the assertion that no relevant guidance or policy records exist. He referred to previous correspondence concerning individual cases and suggested that the positions taken by the Council on those cases do not accord with the Housing Act 1988. He argued that they clearly indicate that the Council is applying some policy or guidance in addition to the Housing Act 1988.
The applicant also provided copies of two documents in support of his view that relevant guidance documents exist. He said that the record entitled "Conditions of stay whilst in temporary emergency accommodation" includes rules for service users to abide by which are not reflected in the Housing Act 1988 and is a record that is routinely used by the Council during placements in emergency accommodation. The second record provided comprises a copy of an email from the LGMA dated 21 July 2023 to CCMA Regional Leads enclosing a copy of a protocol that was approved by members of a CCMA committee and asking that the document be disseminated to relevant personnel within the local authorities. He said his organisation has noticed a number of refusals of access to emergency accommodation made by the Council during the relevant period which bear striking resemblance in logic and language to this protocol. He said it would be expected that a copy of this protocol exists on servers belonging to the Council and may well be circulated internally in correspondence during the period of the request. He said the documents provided indicate that there are, indeed, some records related to guidance or otherwise in the carrying out of homeless assessments and the provision of emergency accommodation.
Moreover, the applicant referenced a case that his organisation had referred to the Office of the Ombudsman during the period of the request concerning revocation of access to emergency accommodation by the Council. He suggested that any internal documents related to this or discussing Ombudsman referrals during this period would be reasonably expected to exist and have not been disclosed. He said that while some of these documents may be entitled to be redacted or refused on grounds other than section 15(1)(a), that section is not a catch all exemption from having to carry out searches, review individual records, and make determinations as to their amenability to disclosure or not.
Having regard to the applicant's detailed submissions, the Investigating Officer sought further submissions from the Council. In response, the Council reiterated its position that no search for correspondence was required as the Director of Service had no correspondence with any of the named parties in the FOI request related to the matters in question. The Council added that its decision maker consulted with a member of the staff of the Homeless Unit on the existence of guidance records and then received the final response from the Senior Executive Officer. On the matter of the document concerning conditions of stay, the Council said this is not a guidance document. In relation to the CCMA protocol, it said the Council is not a regional lead and having consulted with the Senior Executive Officer, it has no record of any guidance from the CCMA. In relation to the homeless statistics and related records, the Council said such records do not relate to items 1-3 or 9-12.
The Investigating Officer asked the Council to provide further clarification of a number of matters, including what staff would correspond on homelessness assessments and the provision of emergency accommodation, whether the Director of Services would ever send/receive correspondence on homelessness assessments and the provision of emergency accommodation, which staff in the Council carry out homelessness assessments and the provision of emergency accommodation and whether they would ever correspond with the Director of Services for Housing on such matters.
In response, the Council identified various grades of staff who would engage in such correspondence and said the Director of Services would receive some correspondence on the provision of emergency accommodation, but not on a daily basis. It said the Director would receive correspondence on recommendations for allocations for approval, circulars from the department and correspondence from the Senior Executive on the provision of homeless accommodation. It identified various grades of staff who are involved in carrying out homelessness assessments and said they would not correspond with the Director directly. It said they may bring issues to the attention of the Director of Service through correspondence from the Senior Executive Officer. The Council also queried if the applicant was, in fact, looking for correspondence at parts 9 and 10 of his request on particular individual cases. It indicated that this was not how it interpreted the request.
Following receipt of those clarifications, the Investigating Officer subsequently clarified with the applicant that he was not seeking records relating to individual cases of homelessness assessments and emergency accommodation provision and that his request was for correspondence on the general administration of homelessness assessments and the provision of emergency accommodation within the Council.
My Analysis
Section 15(1)(a) of the FOI Act provides for the refusal of a request if the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether its 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.
Where an FOI body wishes to rely on section 15(1(a) to refuse a request on the ground that the records sought do not exist or cannot be found, it must first have taken all reasonable steps to ascertain the whereabouts of the records sought. 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 section requires is that the body takes all reasonable steps to locate relevant records. The question of what is reasonable will generally depend on the particular circumstances arising. The Act does not require a body to search indefinitely for records that cannot be found, nor does this Office expect FOI bodies to carry out extensive or indefinite general searches for records simply because a requester asserts that the records sought should or might exist, or rejects a body's explanation of why a record does not exist.
The Central Policy Unit (CPU) of the Department of Public Expenditure NDP Delivery and Reform has published guidance and supporting materials for FOI bodies to assist them in carrying out their functions under the FOI Act. Its published FOI Request Processing Manual provides that in the event that an FOI body is refusing access to records on the basis of section 15(1)(a), it should be able to;
-¢ refer to and provide the body's policies, guidelines and any other such relevant documents which relate to the records sought,
-¢ show the areas that have been searched, along with who searched for them, how they searched.
-¢ demonstrate that they have considered other areas where the records could potentially be held either by mistake, due to their nature or due to the interaction these records had with other records.
-¢ show that they have engaged with relevant staff who may have handled the records, who know the records management in the area.
The essence of the Council's position is that it consulted with relevant staff members who would have knowledge of whether relevant records coming within the scope of the applicant's request exist, that those staff members indicated that no such records exist, and that no searches were therefore required.
I accept that there may be occasions where it is simply not necessary to conduct manual or electronic searches for records. For example, I would not generally expect an FOI body to conduct searches for records relating to a matter in which it has no function whatsoever and would not be expected to hold such records. However, even in such cases, I would expect the FOI Body to be in a position to provide evidence which supports such a position. However, this is not such a situation, in my view. It is not unreasonable, in my view, to expect that the Council might hold guidance or staff manuals to support its staff in the proper performance of their functions in relation to homelessness assessments and/or the provision of emergency accommodation. While I note the Council's position that assessments are currently guided by the Housing Act 1988, it would be entirely reasonable for a requester to assume that the Council might hold guidance or procedural type records to ensure a correct and consistent interpretation of the Act by all relevant staff when conducting assessments.
Similarly, it is not unreasonable for a requester to assume that the Director of Services for Housing might have sent or received correspondence relating to the carrying out of homeless assessments and/or the provision of emergency accommodation over a period of six months. While I do not doubt the bona fides of the Director's assertion that he engaged in no such correspondence, that assertion alone falls short of the requirement under section 15(1)(a) that the Council should take all reasonable steps to ascertain the whereabouts of relevant records.
It is important to note that under section 22(12)(b) of the Act, a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body concerned shows to the satisfaction of the Information Commissioner that the decision was justified. As such, it would not be appropriate for this Office to simply accept an assertion by an FOI body that no relevant records exist without sufficient evidence to support that assertion. Our role is to examine and interrogate the evidence provided to determine if the FOI body has taken all reasonable steps to ascertain the whereabouts of the records sought. As we have indicated on our Guidance Note on section 15(1)(a) which is available on our website www.oic.ie, we will have regard to the relevant information available and assess the adequacy of the searches conducted by the FOI body. The relevant information in "search" cases generally consists of the steps actually taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It may also include further information provided by the applicant for review and/or the FOI body. In this case, when inviting submissions from the Council, the Investigating Officer informed the Council that if its position was that the records sought never existed, it should explain why it considered that the records sought did not exist. She explained, as an example, that if the normal practices and procedures of the Council would not lead to the creation or retention of such records, it should explain this position in detail. In response, the Council simply indicated that as the relevant staff members were certain that no such records ever existed, no searches were undertaken. Indeed, I should note that throughout the entire review process, the Council's responses to queries raised by this Office were quite sparse and lacked the level of detail that we had both requested and generally expect to receive in the course of reviews.
Moreover, as I have outlined above, the applicant made detailed submissions following receipt of the Council's submissions wherein he made various arguments in support of his view that records should exist. While I am not persuaded that all of the arguments were relevant (I will address this below) it seems to me that he certainly raised matters that required further explanation from the Council and that no detailed response was received.
For example, on the matter of the existence of guidance records, he referenced previous correspondence concerning individual cases and suggested that the positions taken by the Council on those cases do not accord with the Housing Act 1988 and he argued that they indicate that the Council is applying some policy or guidance in addition to the Housing Act 1988. He also suggested that the record entitled "Conditions of stay whilst in temporary emergency accommodation" includes rules for service users to abide by which are not reflected in the Housing Act 1988 and is a record that is routinely used by the Council during placements in emergency accommodation. On the matter of the existence of relevant correspondence, he expressed his surprise, reasonably in my view, that"two senior managers would know at a glance that no correspondence took place related to these incredibly broad matters, being homeless assessments and emergency accommodation, with any single member of staff within the housing and homeless sections over the previous six months".
In response, the Council simply reiterated its position that no search for correspondence was required as the Director of Service had no correspondence with any of the named parties in the FOI request related to the matters in question. On the matter of the document concerning conditions of stay, it simply said this is not a guidance document.
Having considered the matter, I am not satisfied that the Council has taken all reasonable steps to search for records coming within the scope of parts 1 to 3 and 9 to 12 of the applicant's request. The refusal of a request under section 15(1)(a) on the basis of an assertion by a relevant staff member does not amount to the taking of all reasonable steps. It seems to me that at a minimum, the Council needs to be in a position to explain how its staff can consistently and correctly conduct homeless assessment based solely their consideration of the Housing Act 1988 without any supporting guidance, process manuals or training materials. It should also be in a position explain where such records would be retained if they existed and to satisfy this Office that no such records are retained in those locations. Moreover, I would expect a request for correspondence over a six-month period to be addressed by way of a consideration of the Council's relevant records management practices and subsequent related searches, manual and electronic if required, depending on the relevant records management practices and policies in place.
In the circumstances, I find that the Council has not justified its decision to refuse parts 1 to 3 and 9 to 12 of the applicant's request under section 15(1)(a). While this finding means that the Council will now be required to consider those parts afresh, it seems to me that before doing so, some clarity should be sought from the applicant as to the precise scope of the request. I say this as it seems to me, having regard to the contents of the applicant's submissions, that he may believe the scope of parts 3 to 13 of his request to be much broader than the Council and, indeed, this Office, has interpreted it. At those parts, he sought various correspondences "related to the carrying out of homeless assessments under Section 2 of the 1988 Act and/or the provision of emergency accommodation under Section 10 of the 1988 Act." As I have outlined above, during this review the Investigating Officer sought to clarify the nature of the records sought and in response, the applicant indicated that he was not seeking records relating to individual cases of homelessness assessments and emergency accommodation provision and that his request was for correspondence on the general administration of homelessness assessments and the provision of emergency accommodation within the Council. However, in his submissions to this Office, he referenced certain correspondence on individual cases as evidence to suggest that the correspondence he was seeking might exist.
It is important to note that under section 12(1)(b) of the Act, a request for records must containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. It is also relevant to note that FOI bodies are entitled to refuse a request where granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned (section 15(1)(c) refers). Accordingly, I strongly recommend engagement between both parties before the Council considers the request afresh with a view to clarifying the precise nature of the records sought. Indeed, such engagement would also provide an opportunity for the applicant to clarify the nature of the records he was seeking at part 13 of his request.
Parts 4 to 8 of the request concern correspondence between the Chief Executive and various identified parties related to the carrying out of homeless assessments and/or the provision of emergency accommodation. The parties in question were the management and staff of the Council's housing and/or homeless sections, the CCMA, the LGMA, and any third parties.
The Council's Corporate Services Directorate said it relied on record holders in the Chief Executive's Office which falls under the remit of the Corporate Services directorate for FOI decisions. The Council said the Secretary and records manager of the Chief Executive's Office conducted a search for relevant records. It said the normal search procedure was carried out, which consists of searching software/database/correspondence repository system and the Chief Executive email accounts. It said the email application was interrogated for emails from September 2023 to the date of the request containing any of the keywords as provided by the applicant, e.g. emails sent to Housing staff, or management containing subject or body items such as "homeless assessments" "Section 2 of the 1988 Act" "provision of emergency accommodation" "Section 10 of the 1988 Act". It said the soft-filing system was likewise interrogated for correspondence between the Chief Executive and the recipients listed in the request in the given timeframe.
The Council added that searches were only carried out via software search i.e. key words, date, name of recipient etc. because all correspondence is saved in soft copy. It said that because all records are stored in soft copy and hard-copy records are scanned and saved in soft copy, even if a file was misfiled it would be retrieved through the search. It said the soft copy search is not limited to a folder as searching by keyword will search the whole library.
The Council further explained that 25 pages of emails were returned from its searches and each email was scrutinised to see if they related in any way to the FOI request received. It added that no records would have been destroyed in such a short timeframe. It said most records have a retention period of 7 years or longer, and that a 6-month timeframe would not be affected by retention.
As I have outlined above, the applicant made detailed submissions following receipt of details of the Council's submissions. At the relevant parts, the applicant suggested that the choice to use keyword searches that include strings of words together, and a failure to use more obvious keywords or phrases such as simply "emergency accommodation", which appears in every paragraph of the request, appear designed to frustrate searches. The applicant also cited a number of previous decisions by this Office concerning the applicability of section 15(1)(a) in support of his argument that more extensive searches should have been carried out. Moreover, he argued that the responses from both sections of the Council make no engagement with the element of the request that relates to the City and County Managers Association or the Local Government Management Association. He also argued that given that the Council relies on service providers to provide all of its emergency accommodation, it seems incoherent that the response to the request would involve no engagement with correspondence with service providers such as Focus Ireland, Cork Simon Community, or any other bodies contracted with the Council.
In response to the applicant's comments concerning the search terms used, the Council said the exact wording of each part of the request was used in the search. It said all the words in the phrase "carrying out of homeless assessments under Section 2 of the 1988 Act and/or the provision of emergency accommodation under Section 10 of the 1988 Act" as written in the original request were entered in the search.
In relation to the 25 emails identified based on the keywords used, the Council said none were deemed relevant to the request. It explained, for example, that the word "emergency" produced emails in the search which were not related to homelessness and emergency accommodation.
Following a request from this Office for clarification of matters relating to the search process for records of correspondence with external third parties, the Council said it instructed a fresh search for records to be carried out by a different staff member. It said the additional search did not identify any records of communication between the Chief Executive and third parties, such as homelessness charities.
My Analysis
Unlike the Council's Housing Directorate, the Chief Executive's Office carried out searches for records coming within the scope of the applicant's request. The question I must consider is whether those searches were sufficient to meet the test of "all reasonable steps". Having regard to the Council's submissions, it seems to me that it has provided a reasonable explanation for confining its searches to the email applicant and the soft-filing system. Moreover, while the applicant has challenged the adequacy of the search terms used, it seems to me that the Council reasonably used the key works contained in the subject matter identified by the applicant in his request. In relation to the applicant's references to previous decisions of this Office, I would simply note that each case is different and the adequacy of the searches undertaken depends entirely on the particular facts and circumstances arising. What is adequate in one case may not necessarily be adequate in another case where the facts and circumstances differ. Previous decisions of this Office do not set precedent that all future decision must follow, particularly where the applicability of section 15(1)(a) is at issue.
On the matter of the Council not having contacted third party service providers to determine if records of the type sought exist, in the particular circumstances of this case I would consider such a step to go beyond the taking of all reasonable steps. The request was for correspondence sent and/or received by the Council's Chief Executive. If such correspondence had been sent or received, the Council submits that those records would have been retained on its electronic systems. Having carried out searches on those systems, no such records were found.
In the circumstances, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of records coming within the scope of parts 4 to 8 of the applicant's request. I find, therefore, that it was justified in refusing parts 4 to 8 under section 15(1)(a) of the Act on the ground that the records sought do not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision. I find that it was justified in refusing access, under section 15(1)(a) of the Act, to records coming within parts 4 to 8 of the applicant's request, namely correspondence between the Chief Executive and various identified parties related to the carrying out of homeless assessments and/or the provision of emergency accommodation. I find that it was not justified in refusing access to records coming within parts 1 to 3 and 9 to 12 of the request under section 15(1)(a) on the basis that I am not satisfied that the Council took all reasonable steps in an effort the ascertain the whereabouts of relevant records. I annul that part of the Council's decision and I direct it to conduct a fresh decision making process on parts 1 to 3 and 9 to 12 of the request.
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.
Stephen Rafferty
Senior Investigator