Decision
Mr. Z and Workplace Relations Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-155133-R6B3L6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155133-R6B3L6
Published on
Whether the WRC was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to a letter sent by the applicant to the WRC on the basis that no such records could be found
26 May 2025
In a request dated 10 April 2024, the applicant sought access to records concerning a letter dated 2 September 2022 that he sent to a named WRC staff member (Ms A). The applicant asked if the letter in question was sent to all staff and requested the WRC provide evidence of same and responses from any staff member that had reported abuse by the applicant. He also asked why Ms A did not acknowledge his letter. On 30 September 2024, the applicant requested an internal review by the WRC as he did not receive a decision on his request. On 18 October 2024, the WRC refused the applicant’s request under section 15(1)(a) of the Act on the basis that no such records exist. On 8 January 2025, the applicant applied to this Office for a review of the WRC’s decision.
During the course of the review, the Investigating Officer provided the applicant with details of the WRC’s submissions wherein it outlined its reasons for concluding that it does not hold the records sought. The applicant was invited to make submissions, 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 outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the WRC was justified in refusing access, under section 15(1)(a) of the Act, to relevant records arising from the applicant’s letter dated 2 September 2022 to Ms A.
It is 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.
It is also important to note that the FOI Act provides for a right of access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
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 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.
The WRC provided this Office with details of the searches it undertook to locate relevant records and its reason for concluding that no 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.
In essence, it is the WRC’s position that it has no record of the relevant letter from the applicant having been received or of any such letter being circulated to its staff. In its submissions, the WRC said correspondence such as letters, emails and notes of phone calls received from Complainants or Respondents which relate to complaints submitted to the WRC are recorded electronically on a case management system. However, the WRC said correspondence of a general nature and phone calls to its Information Line, which do not relate to an actual complaint, is not recorded.
The WRC said it conducted searches of electronic folders/ storage drives where correspondence (including scanned copies of letters received) is held, the relevant shared email inboxes and archives, along with its eDocs system. The WRC said no record of the letter to Ms A being circulated to any staff of the WRC could be identified. The WRC said that following both manual and electronic searches a record of the letter itself has not been located and it can only conclude that such a letter was not received in the WRC. It said that if it had received a letter relating to a complaint before the WRC such correspondence would have been scanned and uploaded electronically on its case management system and attached to the relevant complaint file.
The WRC said it consulted with the existing Executive Officers and asked if they were aware of any such communication or request, and none were aware of same. The WRC said Ms A has since retired but she would have retained any such records on either the shared folders or email boxes as outlined above. The WRC said searches were also carried out in its post room. It said all items of written correspondence are scanned to the WRC Commission Drive where they are associated with relevant complaints or redirected to the most appropriate area for action/response.
The WRC said that during the searches it located records relating to the applicant’s engagements with it, but that these were outside the scope of the request under review in this case. It argued that since its searches identified this other correspondence from the applicant, then this suggests an adequate search was undertaken and the searches would have identified records relating to the request under review here (i.e., records of the letter to Ms A being circulated to relevant staff). It said it used the applicant’s name as a search term.
The applicant was provided with details of the WRC’s searches and he was invited to make submissions of his own. The applicant said the searches used by the WRC were for the wrong name. In a subsequent phone call with the applicant, the Investigating Officer noted that the name the WRC used to search was the name that the applicant used in the relevant correspondence. The applicant also said he had proof of his letter being delivered to the WRC. The Investigating Officer clarified that this review is concerned with records related to the internal circulation of the letter and invited the applicant to make further submissions if he wished. To date, that applicant has made no further submissions.
As the WRC noted, it had located other records, unrelated to this review, concerning the applicant using the search criteria it outlined. I understand the applicant has had a number of engagements with the WRC and Ms A. In my view the search criteria used by the WRC was reasonable given the circumstances and its knowledge of the applicant’s engagements with it.
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 public body concerned takes all reasonable steps to locate relevant records. Furthermore, 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.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the WRC has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why it is unable to locate any relevant records. In the circumstances, while I appreciate the applicant will be disappointed by my decision, I find that the WRC was justified in refusing access to records relating to his request 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 to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the WRC’s decision to refuse 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.
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Richard Crowley
Investigator