Decision
Mr Y and National Archives
From Office of the Information Commissioner (OIC)
Case number: OIC-150146-Z5L1C1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150146-Z5L1C1
Published on
18 December 2024
This case has its background in correspondence between the applicant and the National Archives in which the applicant alleged that court records relating to him had been destroyed and that this destruction was in contravention of the National Archives Act 1986 (the 1986 Act). The applicant had queried whether the National Archives could take action against a particular District Court and/or the Court Services for non-compliance with the 1986 Act. He alleged the named Courts Service was not compliant with the 1986 Act and its associated Regulations as, according to the Department of Justice Circular 20/93, District Courts must preserve the specified categories of records he had outlined. The applicant alleged that disposal of any records without a certificate signed by the Director of the National Archives is a breach of the 1986 Act. I understand the National Archives told the applicant that, as far as it is concerned, there is no evidence that the Courts are not complying with their obligations under the 1986 Act and that the implementation of any circular issued by the Department of Justice (or any other body), is a matter for the Department (or body) concerned and not the National Archives.
In a request dated 26 January 2024, the applicant sought access to “all Government information regarding which body or organization is responsible for such a breach” and “the number of such breaches of The National Archives Act and Regulations Act particularly DOJ Circular 20/93 The Disposal of District Court Records and which government body person or organization handled such breaches and associated offences”. In a decision dated 23 February 2024, the National Archives refused the applicant’s request under section 15(1)(g) of the FOI Act. In its decision letter, the National Archives said that it had replied to the applicant on the subject matter of his request on several occasions, through a previous FOI request and directly through the Director and Keeper for Government Services.
On 27 February 2024, the applicant sought an internal review and reiterated his concerns that there appears to be no state body to investigate the absence of court records which may have been prematurely destroyed. On 11 March 2024, the National Archives varied its original decision and refused the applicant’s request under section 15(1)(a) of the Act on the ground that it did not hold any records/data/figures on any breaches of the 1986 Act. The National Archives said that there is no reference to ‘breach’ in either the 1986 Act or its associated Regulations, and that a request for information on the implementation of any circular issued by the Department of Justice (or any other body) was a matter for the Department (or body) concerned and not the National Archives.
On 28 June 2024, the applicant applied to this Office for a review of the National Archives’ decision, claiming the National Archives failed to act on a breach of the 1986 Act by a named court office. The Investigating Officer in the course of this review provided the applicant with details of the National Archives’ submission wherein it outlined its reasons for refusing the request under section 15(1)(a), the searches undertaken to locate the records sought and its reasons for concluding that records relevant to the applicant’s request do not exist or cannot be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 between the National Archives and the applicant as outlined above and to the submissions of both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the National Archives was justified in refusing access, under section 15(1)(a) of the FOI Act, to records coming within the scope of the applicant’s request on the ground that no relevant records exist or can be found after all reasonable searches have been carried out to locate them.
Before I address the substantive issue in this case, I wish to make a number of preliminary comments.
Firstly, it is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, it is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 15(1)(a)
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.
Submissions of the parties
As noted above, both the applicant and the National Archives made submissions to this Office. The National Archives provided this Office with details of the searches it undertook in an effort to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those submissions or details in full here, I confirm that I have had regard to them for the purposes of this review.
Applicant’s submissions
In his application for review to this Office, the applicant said that the National Archives must have a role in acting on breaches of the 1986 Act, in this case where certain records were not found by a named Court Services office as well as any record of their destruction being authorised by the National Archives. He also disputed that there were no ‘breaches’ outlined in the 1986 Act, and said that the word ‘breach’ is used repeatedly on the National Archives’ website.
In submissions to this Office, the applicant said that if any of the specified categories of records have been destroyed, he accepted that the National Archives could not have been notified as it has no records of any applications for appraisal or destruction in relation to Court Records that pertain to his identity from a specified time period. He said that he found it very concerning that no government body including the National Archives itself has any records of complaints regarding potential breaches of the 1986 Act, and that the only form of reporting such breaches is to a records manager of the same Body or Organisation of which the complaint pertains to.
Regarding the National Archives’ position that compliance or breaches of any relevant circulars was a matter for that Government Body, the applicant said that the Department of Justice merely redirected him to the Courts, who he said then stated that no breach of the 1986 Act occurred. The applicant said that the Office of the Ombudsman also investigated and could only suggest filing a complaint with the Supervising Authority of data processing of the Judiciary (Courts) as the Data Protection Commission has no jurisdiction. The applicant said that he found this structure of having no independent government body to file potential complaints to regarding the 1986 Act very concerning.
Submissions of the National Archives
In summary, the position of the National Archives is that the records sought do not exist or cannot be found, as the National Archives have no powers of enforcement under the 1986 Act and do not record instances of non-compliance with the 1986 Act.
In its submission, the National Archives stated that its eDocs system, all shared folders, personal folders and the catalogue of archived Government records were searched by it. It said that, where necessary, any archival record that may be relevant to the request but needed further detailed examination was retrieved from storage. It said that all relevant individuals were consulted, including the Director, Keeper (Archives and Government Services), Senior Archivists and Corporate Staff.
The National Archives said that its searches were based on the information/records sought by the applicant on who is responsible for breaches of the 1986 Act and the number of breaches, with particular reference to breaches of the Department of Justice Circular 20/93 on the disposal of Court records, particularly the named District Court.
The National Archives said that it is governed by the 1986 Act and all scheduled bodies therein are subject to the provisions of that Act. It said that this includes the Department of Justice and Court Services. It said that the 1986 Act does not convey powers of enforcement upon the National Archives or any other Government Body where the provisions of the 1986 Act are not complied with. It said that Section 7 of the 1986 Act deals with the proper disposal of records and outlines how this must be done. The National Archives said that the 1986 Act provides for the appraisal of records by the National Archives and for recommendations to be made around disposal where deemed appropriate. It said that permission should be sought from the Director of the Archives or a designated officer of the Archives before any disposal of records can take place. The National Archives said that, however, it does not have any further powers concerning the disposal of records or non-compliance with the 1986 Act i.e. a breach. It said that an assertion that the National Archives has any further powers around non-compliance with the 1986 Act is incorrect.
The National Archives further said that it does not hold any records on breaches of the 1986 Act as it is not empowered or required to investigate such non-compliance/breaches under legislation. It said that it is not the position of the National Archives to comment further on what Government organisation is responsible for breaches of the 1986 Act. It said that, furthermore, it is also not the position of the National Archives to comment on circulars relating to separate FOI bodies.
In the course of this review, this Office made inquiries as to whether the National Archives has a complaints process, or where someone could go if they wanted to make a complaint about a breach of the 1986 Act. In its reply, the National Archives said that there is no formal mechanism in the 1986 Act to give power to the National Archives to deal with non-compliance with that Act's requirements. It said the National Archives can only act upon the invitation of a State Department/body to inspect or review. The National Archives said that if someone wished to make a complaint about non-retention of records, it was possible that the appropriate person to receive such a complaint was the Records Manager of the relevant organisation. It said that, however, this was not provided for in the 1986 Act.
The National Archives said that its role is ultimately as a depository for official records, and as an advisor regarding such records, that are over 30 years old. It said that its advisory role was also invitation-based as outlined above.
My Analysis
It is important to note that 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, or as in this case the applicant asserts that the National Archives should have a role that would generate the type of records that he seeks. While the applicant has asserted that the use of ‘breach’ on the National Archives’ website implies that there is an enforcement mechanism, there is nothing before me in the submissions of the parties that disputes the National Archives’ position that it has no enforcement powers and that no relevant records exist.
As noted above, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Furthermore, this review is solely concerned with the National Archives’ decision to refuse the applicant’s request for the records sought in his FOI request, and not with the record-keeping practices of any other body, including the named Court or the Courts Services.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the National Archives has adequately explained why no records exist in relation to the applicant’s request. In the circumstances, I find that the National Archives was justified in refusing access to records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, as no records exist or can be found after all reasonable searches have been carried out to locate them.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the National Archives’ decision to refuse access to the records sought by the applicant 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 have been taken to locate them.
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