Decision
Ms. X and Louth County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-146416-X0Q2T3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146416-X0Q2T3
Published on
Whether the Council was justified in refusing access to various additional records relating to the applicant under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
11 July 2024
On 3 October 2023, the applicant made the following 9-part request to the Council:
1. Copy of a named Occupational Therapist’s report as referenced by a named Council staff member at a specified meeting regarding a specified residential property
2. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications the named Occupational Therapist (OT) and a second named Council staff member regarding who from the Council instructed the OT not to engage with the applicant over a circa 23-year period regarding the property from the 1 January 2023 onwards
3. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications between the OT and the first named Council staff member regarding who from the Council instructed the OT not to engage with the applicant over a circa 23-year period regarding the property from the 1 January 2023 onwards
4. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications between the OT and a third named Council staff member regarding the property from 1 January 2023 onwards
5. - Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from the third named Council staff member and a fourth named Council staff member regarding the property from 1 January 2023 onwards
- Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from the third named Council staff member and the first named Council staff member regarding the property from 1 January 2023 onwards
6. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from the third named Council staff member and the fifth named Council staff member regarding the property from 1 January 2023 onwards
7. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from the third named Council staff member and the second named Council staff member regarding the property from 1 January 2023 onwards
8. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from a number of named Council staff members and the OT to any/other/all other persons regarding the property from 1 January 2023 onwards
9. Copy of all internal emails/memos/telephone/attendances/notes/meetings/ communications from Council personnel to any/other/all persons regarding the property from 1 January 2023 onwards
On 2 November 2023, the Council issued its decision on the request, granting access to records relating to parts 1, 5 and 9 of the request and refusing the remaining parts under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.
On 6 December 2023, the applicant corresponded with the Council requesting that it forward her all omitted records and made a number of additional requests for records. On 8 January 2024, the Council issued an internal review decision affirming its original decision refusing the applicant’s request for records under section 15(1)(a) of the FOI Act. On 12 February 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, the Investigating Officer wrote to the applicant and provided her with details of the Council’s submissions setting out the details of the searches it undertook and the reasons why it refused her request under section 15(1)(a). The Investigating Officer invited the applicant to make submissions. However, to date she has not done so.
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 applicant’s comments in her application for review and to the submissions made by the Council in support of its decision. 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 FOI Act, to any other relevant records apart from those already released on the ground that no additional relevant records exist or can be found.
The Council refused parts 2 to 4 and 6 to 8 of the request under section 15(1)(a) of the FOI Act. That section 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 the decision was justified. This means 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 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where the records that an applicant believes ought to exist have not been located.
As noted above, the Council provided this Office with details of the searches it said it undertook in order to locate relevant records and its reasons for concluding no further records exist or can be found, details of which were provided to the applicant. While I do not propose to repeat the 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 it released records relating to parts 1, 5 and 9 of the applicant’s request. It said no further records relating to the request exist. It said that in relation to the refusal of part 2 and 3 of the request, it did not instruct staff members or contractors not to engage with the applicant. It said that while the search for records relevant to the request were carried out, there was no reason to believe that any such records existed. It said the staff members identified in the applicant’s request were asked to search emails for correspondence relating to the applicant from 1 January 2023 onwards. It said that a number of keywords were used in mail searches to locate records relating to the applicant including the email address of the applicant, name of the applicant, address, and housing reference number. The Council said the applicant corresponded with the Chief Executive and such correspondence was passed to the housing department within the Council. It said there was no requirement to carry out searches for records relevant to the applicant’s request in other departments within the Council as the applicant had only corresponded with the Chief Executive and the housing department.
The Council added that the relevant hard copy housing file was checked for records relating to the applicant’s request and that the hard copy of the previous FOI file, not under review with this Office, was also checked for records. It said the internal housing drive was searched for records relevant to the request. It said a keyword search was carried out on the internal housing drive to locate records including the name of the applicant, the address and the housing file reference number. It said the housing file was stored chronologically in a filing cabinet and that the relevant cabinet was checked to ensure that no misfiling of records had occurred. It said that staff adhere to a records management policy which is accessed locally on the staff intranet.
Regarding the applicant’s request for phone notes and minutes of meetings, the Council said it searched the applicant’s paper file, emails and the housing folder on the server for any record of meeting notes or phone call notes. It stated that all records, notes, and phone call notes of merit are recorded on the relevant file, and that this file was searched and documents released in full. It said phone call notes are made where the record of the phone call is considered to be of merit. It said the housing department does not operate a 100 percent scan to electronic record, and that records may be paper based on the relevant file or stored electronically on the housing drive. It said the housing department phone notes where the information given in the communication is considered to be of merit. It said all records of phone calls and meetings relating to the request were released to the applicant, and that no further records relating to her request exist.
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 ae 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 searches for records simply because an applicant asserts that records should or might exist.
Having regard to the Council’s submissions, and in the absence of evidence to suggest that additional searches might be warranted, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records can be found. In the circumstances, I find that the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant’s request 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 Council’s decision to refuse access to further records relating to the applicant’s request under section 15(1)(a) of the FOI Act on the basis that further records do not exist and/or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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