Decision
Mr X and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150817-G7C2X1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150817-G7C2X1
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s employment with Dublin Fire Brigade, on the ground that no further records exist or can be found
26 November 2024
In a request dated 9 February 2024, the applicant sought access to records created since 1995 relating to his employment in Dublin Fire Brigade (DFB) with a focus on his time in a particular fire station. The applicant said he was aware that a named DFB staff member had “contemporaneous notes” about him and specifically asked for a copy of these notes.
On 19 March 2024, the Council’s Human Resources Department issued a decision part-granting the applicant’s HR file. It redacted third party personal information under section 37(1) of the FOI Act. The decision-maker informed the applicant that Dublin Fire Brigade would issue a separate response to his request. On 12 April 2024, DFB issued a decision granting access to further records.
On 16 May 2024, the applicant requested an internal review of the Council’s decision. He subsequently clarified he was appealing the decision made by DFB, and not the Council’s HR Department. On 24 June 2024, DFB varied its original decision. DFB released one additional record to the applicant, namely a copy of his 2024 Performance Management Development System (PMDS) record. DFB refused the applicant’s request for “contemporaneous notes” under section 15(1)(a) of the FOI Act as the record could not be found by either DFB or the Council’s HR Department.
On 26 July 2024, the applicant applied to this Office for a review of DFB’s decision. The applicant said that he had received a copy of minutes of a meeting in which the colleague he named in his original request had said he had kept “contemporaneous notes” on the applicant’s alleged misconduct. The applicant said he had never been told about these notes and he did not receive them as part of the records released to him. He also said he has four copies of his PMDS forms from the fire station but contended there should be more available.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions, outlining the searches it said it had undertaken to locate the records sought and its reasons for concluding that no further records exist. The applicant was invited to comment on the Council’s submissions. In response, the applicant indicated that he wants his case to proceed to a 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 correspondence outlined above and to the submissions made by both parties 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 Council was justified, under section 15(1)(a) of the Act, in refusing access to further records relating to the applicant’s employment with DFB, on the ground that no further records exist or could be found.
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 locate them have been taken. The role of this Office in such cases is to review the decision of the FOI body and decide whether that decision was justified. This means that we must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at its decision and 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 Council provided this Office with details of the searches that it undertook to locate the records sought by the applicant and its reason for concluding that no further records exist, 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.
The applicant provided this Office with minutes of a meeting about him held in December 2023 which noted one of the attendees saying he had kept “contemporaneous notes” concerning the applicant’s behaviour. The Investigating Officer asked the Council for details of the searches it had undertaken to locate the “contemporaneous notes”.
In its submissions to this Office, the Council said that its Human Resource Department was consulted as part of the process in searching for this “contemporaneous note” but no records were located by its HR Department. The Council said that the staff member who made this comment in the meeting was consulted during the search by phone and email. The Council said that relevant fire station was searched and that the Station Officers’ computer was reviewed. The Council said that the station operates a clean desk policy in line with the Council’s guidelines, and as such, no personal notes/records are left on display. The Council stated that the staff member who made the comment at the meeting searched his own files on the station PC and found no records of a contemporaneous note. It said that searches were carried out by name and badge number and it was explained that a badge number is an individual’s personal identifier used in DFB. The Council said that the staff member confirmed that the notes did not exist and if they did exist, they would have been found in the computer searches.
The Council said that another staff member of DFB was consulted and that he personally went to the fire station to interview the staff member who was recorded as saying he kept “contemporaneous notes” relating to the applicant. The Council stated that he told the other staff member that no such notes were taken and there was no reason to disbelieve him. When the investigating Officer asked if a record of a “contemporaneous note” ever existed, the Council responded by saying that staff member who made the comment stated that the note never existed and there would not have been a requirement to create such notes. The Council noted that, as part of its decision on the applicant’s request, he had received copies of emails, letters, its disciplinary policy and the minutes of a meeting between the applicant and the individual who is recorded as saying he had “contemporaneous notes”.
The Council confirmed to this Office that the minutes of the meeting held in December 2023 were accurately recorded and so the staff member’s comment stating that he kept “contemporaneous notes” of the applicant’s behaviour was not mistakenly recorded. The Investigating Officer asked the Council to clarify why the staff member had said he kept a “contemporaneous note” but subsequently stated during the course of this review that such notes never existed. The Council responded to this by saying that the staff member was consulted again and informed the Council that he did have “contemporaneous notes” he had taken on the applicant’s professional conduct. A copy of this record was provided to this Office. The record was minutes he had taken of a separate meeting between the staff member and the applicant in October 2023. The Council said that it understood that this record had already been released to the applicant but it re-released it to the applicant during this review to be sure. The Council stated that these meeting minutes were the only “contemporaneous notes” the staff member has.
In its submissions to this Office, the Council said that where an employee of the Council, past or present, requests a copy of their records under Freedom of Information, the Human Resources Department conducts a search for records with each of the Sections within the HR Department, to discover what records, if any, are held by them in respect of the employee. I understand that records from the Resourcing Unit, the Superannuation Unit, the Health and Safety Unit, and the Optimum System were released to the applicant by the Council. The Council said its Employee Relations Unit did not hold any records as, while it does hold records for employees relating to employment issues such as disciplinary or grievance, it does not hold records relating to Operational employees of DFB. During the course of this review, the Council said that its Learning and Development Unit found a listing on a spreadsheet of the applicant attending a pre-retirement seminar in July 2023. This record was released to the applicant. As noted above, the applicant did not appeal the decision concerning records held by the Council HR Department.
The Council said DFB Human Resources carried out another search during the course of this review. The Council said that a secure filing cabinet was checked and the DFB Human Resources shared drive was searched using the applicant’s name and badge number. In this search, the Council said a record of a chain of emails about a Skills for Work programme the applicant had applied for were found. This record was subsequently released to the applicant.
The applicant believes more records should exist within the scope of his request, and in particular copies of his previous Performance Development Plans (PDPs). He said that further records should be in a filing cabinet in the specified fire station. The applicant provided this Office with images of hard copy records of his previous PDPs from past years and stated that there should be more released to him.
The Investigating Officer put this to the Council and asked if more of the applicant’s PDP records exist. The Council responded by saying that hard copies of PDPs are replaced each year by the new and current PDPs on file for each employee when the PDP process is conducted. The Council stated that The Learning and Development Unit of the Council’s HR Department are notified of the progress of completion of PDPs. It said DFB would provide information to this effect. The Council said it has no further hard copies pertaining the applicant’s previous PDPs on file. Generally, the Council said that no ongoing record of an individual employee’s PDP is kept beyond being counted in the annual statistics for assessing compliance with the PMDS process. With specific reference to the fire station, the relevant staff member was contacted by the Council and confirmed that there are no previous PDP hard copy records available. The Council said that the District Officer on duty also searched the filing cabinet in the fire station and said that no historical records relating to the applicant were found.
DFB said that no electronic versions of PDPs are available. It said that its policy is to retain PDP records for three years. The Investigating Officer asked DFB why the applicant’s PDP records from the past three years were not provided if they were retained in line with its record keeping policy. The Council said the previous PDPs were destroyed once a new PDP was agreed between the applicant and his management. The Council said that this means that the only PDP it holds is the one pertaining to 2024 which was released to the applicant at the internal review stage. The Council said that it appears that the three-year retention policy had not been followed as the applicant’s PDP records from the last three years have not been retained. The Council said that this has been raised with Senior Management for review.
The Council considers the applicant has now received all records it holds relating to his employment with DFB, including the “contemporaneous notes” that he sought in his request. While it appears that some of the applicant’s previous PDP records were not retained in accordance with the Council’s record-keeping policy, it is not the role of this Office to determine what records should exist. If a record does not exist, that is the end of the matter.
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 submissions from both parties in this case, and in the absence of any evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of the records sought by the applicant. I find, therefore, that the Council was justified in refusing access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the 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 Council’s decision to refuse access to further records coming within the scope of 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