Decision
Mr E and National Transport Authority ("the NTA")
From Office of the Information Commissioner (OIC)
Case number: 140029
Published on
From Office of the Information Commissioner (OIC)
Case number: 140029
Published on
Whether the NTA was justified in its decision to refuse access to two records relating to the source of a complaint made to the Commission for Taxi Regulation (subsumed into the NTA on 1 January 2011) relating to the applicant under section 10(1)(a) of the FOI Act on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
24 June 2014
The applicant made an FOI request on 11 September 2013 to the NTA seeking access to a "full copy of all information on me held on file with your department and with the department of Commission for Taxi Regulation". On foot of this request the NTA released a number of records to the applicant on 17 October 2013. The applicant was not satisfied with this and requested and internal review of this decision on 21 October 2013. As part of this request for internal review the applicant identified four particular records which he believed were held by the NTA and should have been released on foot of the original request. These are:
There were two separate complaints made to the NTA in relation to the applicant. The first was made in 2008 and while the NTA has a copy of the letter forwarding it to the Gardaí, it does not hold a copy of the actual complaint. The second complaint was received in April 2013 and a copy of this was released to the applicant.
After internal review the NTA released one of the identified records, the letter from the Head of Enforcement, Commission for Taxi Regulation, dated 18 January 2008 to the PSV Inspectors Office, while stating that it did not hold any additional records in relation to the request. The applicant applied to this Office for a review of this decision on 29 January 2014. The NTA subsequently located a file provided to them by the legal representatives of the applicant which contained a further record which was specified at internal review stage. This record was the letter from the Director of Legal Affairs to the applicants legal representatives dated 19 February 2008 and this file has been released to the applicant in full.
I note that Mr David Logan of this Office informed the applicant on 30 April 2014 of his preliminary view that the decision of the NTA to refuse access to the two remaining records was justified under section 10(1)(a) of the FOI Act on the basis that the records cannot be found or do not exist. The applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
The applicant identified four particular records at internal review stage of which two were subsequently located and released to him. Therefore this review is solely concerned with the question of whether the decision of the NTA in refusing access to the two remaining records requested by the applicant at internal review stage was justified on the basis of section 10(1)(a) of the FOI Act.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if:
"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."
The Commissioner's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).
In a submission to this Office the NTA outlined the searches it carried out to locate the records requested. Searches were carried out for any reference to the applicant concerning his vehicle licence in the vehicle licensing database while searches were also carried out of any contact the applicant may have had with the NTA in its CASE management system. Any records located during the course of these searches were released to the applicant.
With regard to records relating to the complaint made against the applicant in 2008 the NTA has stated that the complaint was passed to An Garda Siochana by the Head of Enforcement, Commission for Taxi Regulation on 18 January 2008. An Garda Siochana is the Licensing Authority with responsibility for investigating complaints made in relation to suitability of a driver to hold a Small Public Service Vehicle Licence. The NTA state that the Commission for Taxi Regulation did not receive any correspondence back from the Gardaí on the matter nor did it investigate the particular complaint as it was outside its remit. As such no record exists of a response from the Commissioner for Taxi Regulation to the complainant.
With regard to a record of the complaint itself, the NTA has informed this Office that, following thorough searches in both paper and electronic files, including the vehicle licensing database and the CASE management systems, it cannot locate a copy of this complaint. In it's submission to this Office the NTA stated that searches for a hard copy of the record were carried out in all offices where files previously held by the Commission for Taxi Regulation are located. In addition searches were carried out in the Enforcement Section and any other areas where taxi related files are held. No record of the 2008 complaint was found. It also states that active complaint records are only held on file for a period of 5 years unless the particular document was required for a court case or legal proceedings. There were no such legal proceedings involving the NTA in this case.
I have considered the explanations provided by the NTA concerning the nature of the records sought and the information provided in respect of searches carried out of paper and electronic records, and in particular the NTA's statement that it does not ordinarily hold records of complaints beyond 5 years. Having so considered I am satisfied that the NTA was justified in refusing access to the records sought in accordance with the provisions of section 10(1)(a) of the FOI Act and I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the National Transport Authority in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator