Decision
Mr Z and Workplace Relations Commission
From Office of the Information Commissioner (OIC)
Case number: IC-150240-H5G4J9
Published on
From Office of the Information Commissioner (OIC)
Case number: IC-150240-H5G4J9
Published on
Whether the WRC was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records related to the applicant’s adjudication file on the basis that no further records exist or could not be found after all reasonable steps were undertaken to locate the records
2 December 2024
In a request dated 27 May 2024, the applicant sought access to a numbered adjudication file, that he was a party to. On 12 June 2024, the WRC released the adjudication file to the applicant. On the same day, the applicant requested an internal review of that decision, claiming the file provided was incomplete and did not contain all records which contain his name or references to his personal details such as case reference numbers. On 2 July 2024, the WRC varied its original decision and released an additional email which had previously been sent to the applicant inviting him to a virtual hearing regarding the relevant adjudication file. On 3 July 2024, the applicant applied to this Office for a review of the WRC’s decision claiming it had not released all the files.
At the outset of this review, the Investigating Officer wrote to the applicant and asked if he is aware of any specific records that the WRC had not released to him. The applicant indicated that he did not know what further records might exist. The Investigating Officer subsequently provided the applicant with details of the WRC’s submissions to this Office outlining the searches it said it had undertaken and its reason for concluding that no further records exist or could be found. The applicant was invited to make further submissions if he wished. No further submissions were 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 outlined above, including the submissions made by the WRC in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The WRC’s position is that all records in relation to the applicant’s FOI request were released to him in full. However, the applicant believes further records ought to exist. Accordingly, this review is concerned solely with whether the WRC was justified in refusing access to further records relating to the specific adjudication file referenced in the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or could be found.
Section 15(1)(a) of the Act provides that an FOI body may refuse to grant a request when the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. 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 record in question.
In its submissions to this Office, the WRC provided details of its record management systems concerning its adjudication files and the steps it took to locate records related to the applicant’s FOI request, details of which were provided to the applicant. While I do not intend to repeat these details in full here, I can confirm that I have had regard to them.
As the request was about a specific case reference number, the WRC said searches were limited to records solely related to the relevant case. The WRC said that, generally, all correspondence received by the WRC are placed on file and exchanged with parties to a case. The WRC said these files are placed in a “bundle” and its case management system updates this bundle as files are added. It said it examined records related to the bundle associated with the relevant case number. The WRC said bundles are the collection of documents which make up the case file and everything relating to evidence supplied by either party by way of correspondence are added to the case management system. The WRC said, letters are manually scanned and uploaded to the case management system and that emails are electronically added to the case management system.
The WRC said that its hearing of the adjudication case at issue was postponed on foot of a request from the applicant. The WRC said documents received in relation to postponement requests are not recorded in the bundle, but in another part of the adjudication file, as they may contain sensitive information. It said no records related to the request were destroyed and, as the applicant had requested a postponement, there was no need to consult with the Adjudicator assigned to the case.
In regard to the email that was released to the applicant at the internal review stage, the WRC said it had identified an email with a virtual meeting link that was sent to the applicant but not included in the adjudication bundle of documents which were initially released to the applicant. It said, these virtual meeting link invitations are sent to parties by email containing a hyperlink to a remote hearing. It said these invites are saved in another part of the case management system called “Notes” and are not recorded in the bundle.
The WRC said the areas of the case management system where records are located are called:
a) Documents – where the bundle is filed
b) Hearing Postponement Request View or POS – where postponements are filed
c)Notes – where staff notes in relation to an adjudication file can be viewed
As this case involved a request for a postponement, the WRC said postponement applications, comments from the other party, and decisions from the adjudicator on the postponement application (if appropriate) are filed by the postponements team. The WRC said that, with respect to the relevant adjudication file, the applicant sent a postponement application with correspondence from his doctor by email to the dedicated email address for all correspondences, which was subsequently re-directed by a member of staff to the email address dedicated to handling postponements. It said the postponement application was filed by a member of the postponement team in the POS for the relevant adjudication file. The WRC went on to say that, due to concerns around the applicant’s postponement application, his application was immediately referred to an Adjudicator for consideration verbally, without seeking comment from the other party. The WRC said the Adjudicator’s decision, which was provided to the applicant by email, was filed in the Documents section as part of the bundle.
With respect to the relevant adjudication file, the WRC said, the virtual meeting invitation with the hyperlink to the remote hearing was stored under “Notes” by the concierge who sent the invite out to both parties. With respect to searches of email inboxes, the WRC said it searched the Postponements mailbox referred to above, and the PRU Staff group email which includes all staff in the WRC’s Adjudication Services. The WRC said all correspondences relating to this case were sent by email and no hard copies were sent to the WRC. The WRC also noted that it is willing to be advised of specific records the applicant believes to have been left out of the records released to him. However, it remains the WRC’s position that all records were released to the applicant in full with no redactions. As noted above, the Investigating Officer invited the applicant to make further comments or submissions regarding the WRC’s submissions. However, no further submissions were received from the applicant.
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 FOI body concerned takes all reasonable steps to locate relevant records. 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. Having regard to the WRC’s submissions, and in the absence of any evidence to the contrary, I am satisfied that it has undertaken all reasonable steps to locate the records sought by the applicant. Accordingly, I find that the WRC was justified in refusing access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the WRC’s decision to refuse access to further records under section 15(1)(a) of the 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