Decision
Mr X and the Department of Agriculture, Food and the Marine (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170355
Published on
From Office of the Information Commissioner (OIC)
Case number: 170355
Published on
Whether the Department was justified in refusing, under section 15(1)(a) of the FOI Act, to grant access to records concerning the remuneration paid to two individuals it nominated to a Public Appointment Service (PAS) interview board, on the basis that it did not hold the records requested
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
02 November 2017
The relevant part of the applicant's FOI request of 12 June 2017 asked for "the amount of remuneration [received by two named persons, Mr A and Mr B, who had been nominated to a specified PAS interview board by the Department] for the campaign." The campaign, in which the applicant took part, concerned recruitment to a particular Departmental post.
The Department's decision of 22 June 2017 told the applicant that the requested records do not exist. The applicant sought an internal review on 27 June 2017. His application said that the Department had refused the records on the basis that it "cannot find" them. The Department's internal review decision of 10 July 2017 reiterated that the records do not exist, and affirmed its application of section 15(1)(a). On 11 July 2017, the applicant sought a review by this Office of the Department's refusal to grant his request.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the Department, and the applicant. I have had regard also to the provisions of the FOI Act.
This review is concerned with whether the Department has justified its decision to refuse to grant the applicant's request. It cannot include any details subsequently sought by the applicant. The applicant requested the amount of remuneration which request must be taken as seeking access to records that would contain such information. The FOI Act does not generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or, as in this case, that the requested records do not exist.
The Department's decisions say that all arrangements with the members of the interview board, including remuneration, are a matter for the PAS, and that it has no knowledge or record of such arrangements.
The applicant says he was told by the PAS that it paid Mr A a certain amount of money, which he "consider[ed] on the low side for the time involved". He asks "did [the Department] pay some remuneration to [Mr A] as well?" He also states that "the PAS says [the Department] paid [Mr B]".
He also supplied various supporting material, most of which is not relevant. However, the material includes a decision letter made by the PAS on a similar request that the applicant made to that body. It says what had been paid to Mr A, and that Mr B was not entitled to payment from the PAS. It indicated that he could only claim Travel and Subsistence (T&S) expenses from his employer (which I understand to be the Department). The PAS decision does not say, as stated by the applicant, that the Department "paid" Mr B.
The Department maintains its position that remuneration is a matter for the PAS. It clearly says that it made no additional payment to Mr A beyond whatever he was paid by the PAS (of which it is unaware). It says it made no payment to Mr B because serving civil servants are not entitled to anything above their normal salary for service on interview boards. While Mr B is entitled to claim T&S, the Department says that this is not "remuneration". I agree that the request, which requested access to records about remuneration, did not cover any expense claims that Mr B may have made.
The Department's reasons for refusing the request are very clear: it did not "remunerate" the nominees and it does not hold records (i.e. records concerning such remuneration) because they do not exist. The applicant's assertions to the contrary, and the material he has provided in support, give me no basis on which to dispute the Department's explanations.
I am satisfied, and find, that the Department has justified its refusal to grant the applicant's request on the basis that the records do not exist and that section 15(1)(a) of the FOI Act applies.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant access to the records 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.
Elizabeth Dolan
Senior Investigator