Decision
Mr J and Dublin City Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 140047
Published on
From Office of the Information Commissioner (OIC)
Case number: 140047
Published on
Whether the Council was justified in its decision to refuse access to further records relating to a complaint made regarding a product supplied to the Council by the applicant under section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
10 November 2014
On 14 February 2013 the applicant made a detailed request, through its legal representatives, to the Council for access to records relating to its dealings with the Council. The Council wrote to the applicant on 6 March 2013 explaining that after an initial examination of the request the decision maker was of the view that, given the wide ranging elements of the request, section 10(1)(c) of the FOI Act was applicable and as such it gave the applicant an opportunity to narrow the scope of the request in accordance with section 10(2) of the Act. On foot of this the applicant submitted a revised request to the Council. In its decision of 19 April 2013 the Council refused access to the requested records on the basis that despite the revised scope, processing the request would represent a substantial and unreasonable interference or disruption to the work of the Council as per section 10(1)(c) of the FOI Act.
The applicant requested an internal review of this decision on 26 July 2013 where he narrowed the scope of his request. Specifically the applicant requested access to records relating to all of the Council's dealings with it concerning the complaint made by a named company, notes and records of attendances at the premises of the complainant by two named Council staff, the subsequent deliberations of the Council and any minutes relating to the decision to remove the applicant from the approved list of suppliers under the Council's FOG scheme, contemporaneous notes of further meetings and telephone conversations with the complainant and any correspondence between the complainant and the Council relating to the applicant. On foot of this request the Council released a number of records to the applicant on 19 August 2013. However the applicant was not satisfied that all records relating to its request had been released and applied to this Office for a review of the Council's decision on 18 February 2014.
I note that Mr David Logan of this Office informed the applicant on 21 August 2014 of his preliminary view that the decision of the Council was justified. The applicant did not offer any further submission to this Office on foot of 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, to the applicant's communications with this Office and the Council, and to the provisions of the FOI Act.
The position of the Council is that it has released all records sought by the applicant in its revised request at internal review stage. The applicant is not satisfied that all relevant records have been released to it and considers that further records ought to exist. Therefore this review is concerned solely with the question of whether the Council was justified in its decision to refuse access to additional records under section 10(1)(a) of the FOI Act on the basis that the additional records do not exist or cannot be found after all reasonable searches have been carried to locate them.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if:
"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."
The Commissioner's role in cases such as this is to review the decision of the public 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 his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).
In a submission to this Office the Council outlined the searches it carried out to locate the requested records. The Council stated that the Drainage Division is the only relevant location which would hold records in relation to the request. Hard copy and electronic versions of the files held in this division were examined and no records relating to the request beyond what has already been released to the applicant could be found. The Council also outlined that the decision to remove the applicant from an approved suppliers list was taken directly by the FOG Programme manager who has subsequently retired. The hard copy files and electronic files of this particular staff member were searched and no records in relation to this decision could be located. The Council has confirmed that no meetings, formal or informal, took place where the removal of the applicant from the approved list was discussed or considered and as such no records exist of this decision being made. A number of spot check site visits were carried out by the Council to premises to investigate issues in relation to the original complaint and files in relation to these visits were checked and no information relevant to the applicant's FOI request was found. The applicant also referred to a meeting between staff of the Council and the company that made the original complaint on 21 March 2012 . In its submission to this Office the Council have stated that it does not hold any records by way of minutes or notes of this meeting nor does it hold any other records of its dealings with this particular company.
In its application for review to this Office the applicant referred to a correspondence from a named official in the Council to the applicant referring to concerns regarding concerns relating to supplied/installed equipment. The Council stated that searches were carried out of the named official's correspondence and no such letter could be located.
In summary the applicant is seeking records of a complaint to the Council about it and the Council's subsequent investigations and decision to remove the applicant from the Council's list of approved suppliers. The Council stated that the complaint was made verbally and that it does not hold any such record. The Council contends that it has provided the applicant with all relevant records covered by the applicant's internal review request of 26 July 2013. The Council stated that any records relating to this matter would be held in its Drainage Division and that searches of electronic and hard copy files have failed to locate any further records. The Council have stated that there are no records of the decision to remove the applicant from it's approved supplier list for it's FOG Programme. I am satisfied that if such records exist they would most likely be located in the Drainage Division
It should be noted that the Council have informed this Office that a letter from the applicant's legal representatives to the Council of 7 September 2012 was not released on foot of the original request on the basis that the Council was of the view that applicant's legal representative would retain a copy of same. The Council also stated that a copy of this letter is available for release to the applicant should he wish to be provided with a copy.
The applicant believes that further records exist, or should exist, in relation to his FOI request. I should emphasise that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide a right of access to records which ought to exist. Therefore the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Commissioner to adjudicate on the public body's performance of its functions in general.
Accordingly, having reviewed the steps taken to locate the records, I am satisfied that the Council has taken all reasonable steps to locate the records sought and I find that the Council was justified in deciding to refuse the request for additional records on the basis of section 10(1)(a) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator