Decision
Mr K and Cork City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-149823-T3D9L0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149823-T3D9L0
Published on
Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to a statement allegedly made by a member of Council staff regarding the applicant on the basis that the records sought do not exist
30 October 2024
On 3 March 2024, the applicant submitted a request to Cork County Council for records relating to a statement allegedly made by a named official of Cork City Council (Ms A) to a named barrister that the applicant was on medication and was being monitored by staff of a named homeless unit.
On 8 March 2024, Cork County Council transferred the request to Cork City Council as the body the County Council believed might hold relevant records. In its decision dated 22 March 2024, Cork City Council refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist. The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request on 22 April 2024. On 17 June 2024, the applicant applied to this Office for a review of the Council’s decision.
The applicant is known to Cork City Council staff as a person who has experienced homelessness and previously engaged with Council staff on a number of occasions in relation to housing and services. The applicant was the plaintiff in a case against the Council relating to those engagements, the proceedings and outcome of which appear to form part of the basis for the applicant’s FOI request. According to the applicant, the alleged statement referenced in his request was false and he expressed concern in correspondence with the Council that allegedly false information regarding his medical history was shared with Council staff.
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 and submissions between this Office and 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 Council was justified in refusing access, under section 15(1)(a) of the Act, to records relating to a statement allegedly made by Ms A about the applicant, on the basis that the records sought do not exist.
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.
In its submissions to this Office, the Council provided details of the searches it undertook to locate relevant records, details of which were provided to the applicant. The Council said that as the request specifically mentioned Ms A who works in the housing directorate, the request was sent to that section to search for records. It said the request was also sent to the Office of Legal Affairs as legal proceedings had been undertaken.
The Council said that as the applicant did not currently have an open application for social housing, no records exist on its electronic filing systems. It said Ms A reviewed her notebook and diary and no record of the alleged statement the applicant described in his request could be found.
The Council added that its Office of Legal Affairs provides full legal services and advice
to all Directorates within the Council. It said hard and soft copy files exist, and both were searched for the record requested but no such record was found. It added that only staff in the Office of Legal Affairs have direct dealings with any barristers/senior counsel engaged for a particular case. It said all correspondence on a case is sent to the member of
the legal profession engaged and originals are kept at the offices. It said that on conclusion of a case the barrister/senior counsel returns their file to the Council where it is shredded, the reason being that it holds a copy of these records at the offices. It said, therefore, that the service provider no longer has records relating to the case in their possession.
The Investigating Officer subsequently asked the Council to clarify if Ms A recollected making the alleged statement and/or any record she may have had access to on which such a statement may have been based. In response, the Council repeated that Ms A was requested to conduct searches for the record requested and could not locate any such record. It added that all correspondence with its Senior Counsel and any documentation issued to its Senior Counsel was reviewed looking for an explicit statement of Ms A and that the soft copy file was searched using specified search terms.
Following receipt of the details of the Council’s submissions, the applicant provided this Office with copies of witness statements given by Council staff to its Legal Affairs Section as part of its defence during the aforementioned legal proceedings. In one of the witness statements provided, a second Council staff member (Mr B) referenced an interview he conducted with the applicant on 14 July 2015 at which Ms A was in attendance. In that witness statement, Mr B said he asked Ms A about the applicant’s medical treatment and Ms A expressed having some knowledge of the applicant’s medical treatment which strongly resembled the alleged statement. The statement also referenced an interview with the applicant that was undertaken by a Social Worker and a subsequent report compiled by the Social Worker which apparently referenced medication. A witness statement given by Ms A was also reviewed and it did not contain any reference to medical treatment or history.
The Investigating Officer brought the statements provided to the attention of the Council and sought clarification of a number of matters. Among other things, he sought to clarify whether any records were created during the course of the interview referenced or any other interview/ meeting with the applicant and if such records exist, whether they might be relevant to the applicant's FOI request.
In response, the Council said its Legal Affairs Office is in possession of the Social Worker’s report as it formed part of its defence in respect of the legal proceedings taken by the applicant. It said it considered the record to fall outside the scope of the request. It said, however, that the report had previously been provided to the applicant.
The Investigating Officer subsequently informed the Council of his view that the Council appeared to have treated the request as a request for a copy of a statement allegedly made by Ms A. He explained that he considered this to be an unduly narrow interpretation of the request. He explained that in his view, the applicant was essentially seeking access to any records held by the Council that might contain evidence that would support the statement allegedly made. He noted, for example, that the Social Worker’s report could comprise such a record. He asked the Council to indicate if it holds any other such records, either in the Housing Directorate or in the Office of Legal Affairs. In response, the Council said it did not agree that it took an unduly narrow interpretation of the request and said the request was specific.
The wording of the request was for the following records:
“Documents – record held by Cork City Council [Ms A] Cork City Council Explicit statement made to barrester (sic) [Mr X] that I was on medication and been (sic) monitored by staff of [named homeless unit] Request communications document records of implicit statem[ent]”
It seems to me that the request as phrased cannot reasonably be described as specific and is, instead, somewhat ambiguous. In my view, it is not immediately apparent from the wording used whether the applicant is seeking a copy of the statement allegedly made or whether he is seeking access to records relating to the alleged statement. I fully accept that under section 12(1)(b) of the FOI Act, a request must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps. Nevertheless, where any ambiguity arises as to the precise nature of a request made, it seems to me that it is incumbent on the FOI Body to seek to clarify the request. Indeed, under section 11(2) of the FOI Act, an FOI body is required to give reasonable assistance to a person who is seeking a record under the Act in relation to the making of the FOI request for access to the record.
On balance, I am satisfied that the more reasonable interpretation of the applicant’s request is that he is seeking access to records that relate to the alleged statement made, which would include, in my view, any records that might serve as an evidentiary basis for the alleged statement. In holding this view, I note that in his application for internal review, the applicant said, among other things, that the alleged statement was untrue and he indicated that he wanted to know why such a statement was given. Moreover, in his correspondence with this Office during the review, he indicated that he wanted documents and/or emails relating to the alleged statement.
In light of my finding that the Council’s interpretation of the request was unduly narrow, I am not in a position to conclude that the Council took all reasonable steps to ascertain the whereabouts of the records sought, given that it confined its searches to searches for the actual statement allegedly made and not for related records it might hold. I find, therefore, that the Council was not justified in its decision to refuse the applicant’s request under Section 15(1)(a).
I direct the Council to make a fresh decision on the request based on my view that the request was for records containing information that might support the statement that that the applicant “was on medication” and was being “monitored by staff of” the named homeless unit. However, for the avoidance of any future doubt, I strongly recommend that the Council engage further with the applicant with a view to clarifying the precise nature of the records sought before processing the request afresh.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse the applicant’s request under Section 15(1)(a) and I direct it to consider the request afresh.
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.
Stephen Rafferty
Senior Investigator