Decision
Ms Y and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150277-F1S8P8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150277-F1S8P8
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records of a phone call and minutes of a meeting between Council staff and the applicant, on the basis that no such records exist or can be found
20 November 2024
In a request dated 25 April 2024, the applicant sought access to the records of a phone call that took place between herself and a named staff member of the Council [Ms A] on 16 February 2024 and minutes of a meeting between herself, her husband, Ms A, and another member of Council staff [Ms B] that took place on 15 March 2024. The phone call in question and the meeting concerned the applicant’s place on the waiting list for social housing.
On 4 June 2024, the Council part-granted the applicant’s request and released a copy of case notes referencing the phone call and a copy of a letter to the applicant dated 19 March 2024 which summarised the meeting on 15 March 2024. The Council redacted the name of the applicant’s husband from the records it released to her under section 37(1) of the FOI Act. In its decision, the Council said it does not record phone calls and that no minutes of the meeting were taken. On 6 June 2024, the applicant requested an internal review of the Council’s decision and asked why minutes of the meeting were not taken. The applicant also challenged the Council’s position that records of phone calls are not recorded. On 25 June 2024, the Council affirmed its original decision. It said phone calls are not recorded within its Housing and Community Services department. On 2 July 2024, the applicant applied to this Office for a review of the Council’s decision. The applicant maintained that minutes of the meeting should have been taken. The applicant said she understood the phone call was not recorded and noted it was not even listed on the log of correspondence that was released to her by the Council. She said she wanted an internal investigation made into this. The applicant alleged that the Council are now denying what was said during the phone call about her position on the Housing List. The applicant did not appeal the Council’s decision regarding the personal information it redacted in the records it released to her.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which she 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 to this Office during the course of this review. 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 of the phone call that took place between the applicant and Ms A on 16 February 2024 and to minutes of the meeting that took place on 15 March 2024, on the basis that no such records exist or can be found after all reasonable steps were taken to locate them.
As the Investigating Officer explained to the applicant, 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. As such, we have no role in investigating the Council’s record management practices or what the Council told the applicant about her housing allocation during the phone call or at the subsequent meeting.
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.
As noted above, the Council provided this Office with details of the searches that it undertook to locate relevant records and its reason for concluding that no further 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 its submissions to this Office, the Council said the search for relevant records was confined to the Housing Allocations section as the phone call and meeting in question were with staff members of that section. The Council said it conducted a search of the electronic filing system used by Housing Allocations using the applicant’s PPS number, name, and date of birth to obtain the applicant’s housing reference number. The Council said it then searched for records related to the request and the applicant’s housing reference number.
The Council said it consulted with Ms A and Ms B and both said no further records existed other than (a) the note of the phone call having taken place on the applicant’s case note system, and (b) the summary letter of the in-person meeting which was prepared by Ms B based on the facts of the applicant’s case and her recollection of the meeting. Both Ms A and Ms B said they did not create any ancillary notes pertaining to the phone call and no notes or minutes of the meeting exist. The Council reiterated that it was the policy of the Housing Allocations section to not record phone calls.
In response to the Council’s submissions, the applicant said she believed the Council was withholding important information about her queries for a housing transfer. She argued that minutes of the meeting should have been taken and that she knew the Council’s statement that it does not record phone calls to be false, citing the prompt at the beginning of a phone call that informs a person that a call may be recorded. The Investigating Officer sought further clarification from the Council regarding its policy around when a call may or may not be recorded. The Council said that call recording in the Council is facilitated by a third-party recording system provider, but not all calls made to the Council are recorded. The Council said it contacted its IS Department who said there is no policy outlining where call recording takes place, but said there is no facility for the recording of phone calls in the Housing Allocations section itself.
The Council said that, when a customer makes contact with the Customer Services section of the Council by phone, he or she will be advised that their “call may be recorded for quality and training purposes.” The Council said the recording takes place only for the duration of the call with the staff member in Customer Services and once the call is transferred out to a client department the recording ceases. The Council said its IS Department advised that call recording takes place for inbound calls to specific Dublin City Council phone numbers and the staff extensions where these calls are answered. If a staff member answers a call to a designated recording number, then this portion of the call will be recorded. It continued by saying that if staff transfer this call to a staff extension that is not set up for call recording (for example, back office staff), then the recording will not continue in this second portion of the call. The Council said this process is automatic and staff do not have an option to enable or disable call recording themselves.
The Council consulted with the Customer Service Section who conducted searches for the call involving the mobile number provided by the applicant and it was unable to locate any record. The Council said it appeared that the call in question was made to a phone number that does not record and no recording of the Customer Service Section portion of the call exists. The Council said that, even if a recording of the Customer Service Section portion of the call had been located, it would be the Council’s position that that record would fall outside of the scope of the request as the request was for a record of the call between the applicant and Ms A on a specific date and at a specific time. The Investigating Officer provided the applicant with a further update of the Council’s submissions about the recording of telephone calls and invited her to make further submissions. No further communication was received from the applicant.
As noted above, the applicant believes that Council staff should have taken minutes of the meeting she attended. The purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies and the mechanism for doing so is by accessing records held by those bodies. FOI bodies are not required to create records where none exist, except in certain circumstances that do not apply in this case. If no record exists, that is the end of the matter from an FOI perspective. As noted above, the Council explained its policy about recording telephone calls and said there is no facility for the recording of phone calls in the Housing Allocations section. The Council said that, in an effort to assist the applicant, it released a copy of its case notes, which simply notes that Ms. A spoke to the applicant on 16 February 2024, and a copy of the follow up letter dated 19 March 2024 which issued to the applicant after the meeting.
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. While I acknowledge that the applicant may be frustrated that the Council did not record minutes of the meeting she attended or record the phone call in question, as stated above, this review is solely concerned with whether the Council was justified under section 15(1)(a) of the FOI Act in refusing access to those records on the basis that no such records exist. Therefore, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has adequately explained why no further records exist in relation to the applicant’s request. In the circumstances, I find that the Council was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no further records exist other than those provided to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in refusing access to a recording of the phone call and minutes of the meeting sought by the applicant 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.
Richard Crowley
Investigator