Decision
Mr M and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: 130275
Published on
From Office of the Information Commissioner (OIC)
Case number: 130275
Published on
Whether the Council was justified in its decision to refuse access to time sheets and other work records relating to the applicant under section 10(1)(a) of the FOI Act on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
13 February 2014
On 16th July 2013 the applicant submitted an FOI request to Dublin City Council requesting the following records for the period January 1st - January 31st and February 1st - February 28th 2009:
• his day to day GO records,
• daily time sheets for South City New Works,
• copies of request forms placed with the Council stores
The Council wrote to the applicant on 15th August 2013 informing him of its decision to release daily time sheets as well as stores requisition dockets submitted by him during the course of his work in the Council for the period in question. However daily work records for the 1st, 2nd, 21st, 26th, January and 27th February 2009 were not released on the basis that they could not be located. The applicant requested an Internal Review of this decision on 25th August 2013. The original decision was upheld after Internal Review on 2nd September 2013. The Council have relied on section 10(1)(a) of the FOI Act to justify their refusal to release these records.
The applicant was not satisfied and applied to this Office on 5th November 2013 for a review of the Council's decision.
I note that Mr David Logan of this Office advised the applicant on 23rd December 2013 putting forward his preliminary view that the decision of the Council was justified. The applicant did not accept 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 Council's decisions on the matter and its communications with this Office;
• the applicants communications with this Office and the Council,
• the provisions of the FOI Act,
At the outset I should explain that the applicant has raised a number of issues which do not come within the scope of this review. Among other things, he
• requested that the Council release records which did not form part of his original request
• queried the accuracy of some of the information contained in the released records
• questioned the failure to redact third party information from some of the released records
Regarding the first bullet point above, the remit of this Office is confined to reviewing decisions on records that are included within the scope of an applicant's original FOI request to a public body. Therefore, in this case the further records sought by the applicant cannot be considered as part of this review. Regarding the second bullet point, it is also not within the remit of this Office to examine or comment on the accuracy or otherwise of released records other than in the context of an application under section 17 of the FOI Act. Section 17 provides for the amendment of records containing personal information relating to an applicant where such information is incomplete, incorrect or misleading. If the applicant contends that Section 17 is relevant to the records at issue in this case it is open to him to make a request under that provision for amendment of the records. Regarding the third bullet point the role of this Office is to review the decision of the Council to withhold particular records whether in full or in part. It has no role in relation to records which have already been released to the applicant. On this occasion the Council has explained that its failure to redact some third party information from the released records was due to an oversight on its part.
This review, therefore is concerned solely with the question of whether the Council was justified in deciding that no further records come within the scope of the applicants request exist or can be found after all reasonable steps have been taken to ascertain their whereabouts and that section 10(1)(a) of the FOI Act applies.
The Council has relied on Section 10(1)(a) of the FOI Act to refuse access to the records in question. Section 10(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that exist or an applicant feels ought to exist. Nor does the Commissioner have a role in commenting on how a public body carries out its functions or remit.
In a submission to this Office the Council provided information relating to searches which it undertook to locate the records in question. The Council stated that the records in question are used primarily as input to a time recording system for subsequent processing by its payroll system and as such are not retained indefinitely. The Council also stated that it is not obliged for operational, audit or legal reasons to retain these types of records once the information they contain is inputted and verified on the Council payroll system. They estimate that there are over 20,000 records of the type requested stored in boxes but they are not stored in a particular order. These boxes were searched on a number of occasions in relation to this request. A large number of records were supplied to the applicant on foot of his request but the Council was unable to locate daily work records for January 1st, 2nd, 21st, 26th and February 27th 2009. With regard to these records the Council advised that January 1st 2009 was a public holiday and its offices were closed, while a payroll printout provided by the Council to the applicant previously indicates that the applicant was on annual leave on January 2nd. As such no work records would exist for these particular days. In relation to January 26th the Council located a daily time sheet relating to the applicant for the South City New Works which has been released. The Council is unable to locate any records in relation to January 21st and February 27th, however work assignments for the applicant for these particular days can be seen in a printout generated from the payroll system which I understand has been released by the Council.
The position of the Council is that it cannot find any further records appropriate to the applicant's FOI request. Having reviewed the steps taken to locate the records in question, I am satisfied that the Council has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies.
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 Council 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.
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Sean Garvey
Senior Investigator