Decision
Mr Y and National Archives
From Office of the Information Commissioner (OIC)
Case number: OIC-150863-C5S1V7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150863-C5S1V7
Published on
7 January 2025
The background to this case lies in efforts the applicant has been making to obtain copies of certain records relating to him that he believes a particular District Court should hold. The applicant contends that the records he sought must be preserved pursuant to Department of Justice Circular 20/93 and that the failure of the Court to retain the records and/or its possible destruction of those records was a breach of the National Archives Act 1986 (the 1986 Act).
In a request dated 24 June 2024 that was subsequently amended on 28 June 2024, the applicant made an FOI request for six categories of records and for a statement of reasons, which I have summarised as follows:
1. Information concerning the number of appraisal and/or application for disposal requests made by the relevant District Court to the National Archives in respect of records subject to Circular 20/93 and the 1986 Act for the period 1986 – 2024
2. Information concerning the number of refusals of any such requests made
3. Information concerning the number of requests granted
4. Information concerning the total number of ‘Certificates of Destruction’
5. A statement of reasons concerning the use by the National Archives of the word 'breach' throughout its website and materials when the Archives Director has stated that the word ‘breach’ is not used anywhere in the National Archives legislation
6. The number of audits/inspections/appraisals of Court Records within the relevant District Court Offices by the National Archives or other specified bodies and the relevant reports
7. The number of instances where the Courts/Courts Services, including the relevant District Court, did not comply with the National Archives Act and its associated Regulations and the related reports
On 23 July 2024, the National Archives informed the applicant that the request for information could not be considered under the provisions of the FOI Act as there were no actual records being sought, given that he was seeking information only relating to engagement with the court services. It said that with regard to the information being sought, it does not hold any of the details requested and, as such, it was not in a position to address any of the specific queries raised.
On 23 July 2024, the applicant sought an internal review of the refusal of his request. Among other things, he noted that the National Archives had not referenced any section of the FOI Act in refusing the request. On 29 July 2024, the National Archives affirmed its refusal of the request, citing section 15(1)(a) of the FOI Act as a basis for doing so on the ground that the information sought does not exist in the National Archives.
On 30 July 2024, the applicant applied to this Office for a review of the decision of the National Archives to refuse his request. In his application for review, he said the information sought should exist, particularly from 2023 onwards on the basis that Circular 20/93 provided that court records should be transferred to the National Archives or disposed of after 30 years.
During the course of the review, the Investigating Officer provided the applicant with details of the National Archives’ submission wherein it outlined details of the searches undertaken for the records sought and its reasons for concluding that no relevant records exist or can be found. The Investigating Officer invited the applicant to make submissions on the matter and the applicant provided a response.
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 between the National Archives and the applicant as outlined above and to the submissions of both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
While the National Archives made no reference either in its original decision or in its internal review decision to the statement of reasons sought at part 5 of the applicant’s request as summarised above, neither did the applicant make any such reference to same in his application to this Office for a review of the refusal of his request or in his subsequent correspondence with this Office. Instead, he sought a review of the refusal of his request on the ground that the information he sought did not exist.
As such, this review is concerned solely with whether the Archives was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for information as set out in the other six parts of his request.
Before I address the substantive issue in this case, I wish to make a number of preliminary comments.
Firstly, it is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, it is also important to note that 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.
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.
I wish to note at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information.
Accordingly, the question I must consider in this case is whether the National Archives has taken all reasonable steps to ascertain the whereabouts of records that contain the information sought by the applicant.
In its submissions to this Office, the National Archives said its “Archives and Government Services - Current Records” Section carries out appraisal work on behalf of the National Archives in accordance with Section 7(1) of the 1986 Act, where Government Bodies subject to the Act can apply to the Director to dispose of records that may be deemed unworthy of retention and transfer to the National Archives. It said it retains all appraisal reports and any certificates of disposal, which require the signature of the Director in its Current Records Section. It said that no record of an application from the named District Court for the appraisal of records was found. It said the 1986 Act does not give the National Archives the power to appraise the records of a Government Body that is subject to that Act, unless that Body has first applied for such an appraisal. It said it does not have any further powers concerning the disposal of records or non-compliance within the 1986 Act i.e. a breach, other than those outlined in Section 7 of that Act. It said that it had therefore concluded that no records exist on non-compliance of the 1986 Act as the 1986 Act itself does not convey the powers to initiate an investigation of non-compliance.
The National Archives explained that it stores, files, retains and disposes of records in line with the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media Records Management Policy and the National Archives Act, 1986. It said it said that it searched its eDocs system, all shared folders, personal folders and the catalogue of archived Government records. It said that, more specifically, the files of the Current Records Section were searched. It said that in that share drive, each State Body that is subject to the Act has its own folder recording any applications for appraisal and the report itself. It said it does correspond with State bodies concerning the appraisal/transfer/disposal of records, but that any such correspondence is initiated by the State body through an application for appraisal of records or otherwise. It said that such correspondence is filed with the Archives and Government Services Section of the National Archives.
In his response following receipt of the details of the National Archives’ submissions, the applicant simply noted as significant the comment of the National Archives that no record of an application from the relevant District Court for the appraisal of records was found and that it had therefore concluded that no appraisal report exists. He did not explain why he considered the comment to be of significance, nor did he make any further submissions in relation to the matter. However, as I have outlined above, in his application to this Office for a review, he suggested that information from at least 2023 onwards should exist in circumstances where Circular 20/93 provides that court records should be transferred to the National Archives or disposed of after 30 years.
It is important to note that this Office has no role in determining the extent to which the Courts are bound by, or have complied with, the provisions of Circular 20/93 or the National Archives legislation. Our role in this case is confined to a determination of whether the National Archives has taken all reasonable steps to ascertain the whereabouts of the records sought. The position of the National Archives is that no relevant records exist as, if they did, they would be located in the file that would have been set up for the relevant body in the share drive of its Current Records Section. It said that no such records were found following a search of that drive.
The FOI Act is concerned with providing access to records actually held by FOI bodies as opposed to records that a requester believes the body should hold. If no such records are held, then that is the end of the matter and the FOI Act has no further application. Having regard to the submission made by the National Archives of the searches undertaken and its reasons for concluding that no relevant records exist, and in the absence of evidence to suggest that further specific searches might be warranted, I am satisfied that the National Archives has taken all reasonable steps to ascertain the whereabouts of the records sought in this case. Accordingly, I find that the National Archives was justified in refusing access, under section 15(1)(a) of the FOI Act, to the records sought.
Finally, while it forms no part of this decision I would add, for the benefit of the applicant, that even if the records he believes the relevant District Court or the Courts Service should hold that relate to him still exist, they would not yet be subject to the National Archives Act, 1986 as they would be less than 30 years old, given that they pertain to a period from 2003 to 2005.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the National Archives to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for certain information relating to requests for the disposal of records concerning a named District Court on the ground that no relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
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