Case number: 130308

Case Number: 130308

Whether the Board was justified in its decision to refuse access to an inventory of files which were supplied by the applicant to the Legal Aid Board under section 10(1)(a) of the FOI Act on the basis that the record sought did not exist.

Conducted in accordance with section 34(2) of the FOI Act by Sean Garvey (authorised by the Information Commissioner to conduct this review).


The applicant submitted an FOI request to the Board on 16th September 2013 for access to a "schedule/inventory of all my files which are held in your office". In its original decision of 9th October 2013 the Board refused access to the records requested on the basis that the board did not create such a schedule/inventory, however the board did release a schedule containing the names of 17 files held by it which was created by the applicant herself and provided to the Board as part of a previous FOI request. The applicant sought an Internal Review of this decision on 31st October 2013. In this request for Internal Review the applicant referred to two additional files which she believed that the board held that did not appear on this schedule and requested confirmation that the Board still held these files. In its Internal Review decision the Board upheld their original decision.

The applicant was not satisfied with this and applied to this Office for a review of this decision on 27th November 2013.

I note that Mr David Logan of this Office advised the applicant that the decision of the Board was justified in his view. The applicant did not accept this 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 decisions of the Board on the matter and its communications with this Office;
  • the communications of the applicant with this Office and the Board;
  • the provisions of the FOI Act.


I note that the applicant submitted a detailed response to Mr Logan's letter dated 14th March 2014 and I have also had regard to the contents of that response.

Scope of Review

This review is concerned solely with the question of whether the Board was justified in its decision to refuse access to the records on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist. It is important to note that this Office cannot deal with issues that fall outside the scope of the FOI Act.

Preliminary Matters

In her application for Internal Review the applicant requested confirmation that the Board held two particular files which were supplied by her to the Board and are of concern to her. However this request for conformation was not part of the applicant's original FOI request in this case and as such cannot be considered as part of this review.

The applicant raised a number of issues regarding the efficiency of the records management system of the Board in her submission to this Office of 14th March 2014. However it is outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally and as such these issues cannot form part of this review.

Analysis and Findings

At the outset it is important to establish that the FOI Act does not create any onus on public bodies to create records which do not otherwise exist. This is evident from the wording of Section 7(1) of the FOI Act, which sets out the manner in which an FOI request must be made:

"A person who wishes to exercise the right of access shall make a request, in writing or in such other form as may be determined, addressed to the head of the public body concerned for access to the record concerned --
(a) stating that the request is made under this Act,
(b) containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, and
(c) if the person requires such access to be given in a particular form or manner (being a form or manner referred to in section 12 ), specifying the form or manner of access."

The wording of Section 7, and, in particular of clause (b) clearly indicates that a request can only be made for a record which was in existence at the time of the request. In turn, section 10(1)(a) of the FOI Act provides that a request for a record may be refused if "the record concerned does not exist...".

In this particular case the applicant is of the view that a schedule/inventory of her files held by the Board exists and that she be provided with access to same. This is evident from her original FOI request in which the applicant requested a "schedule/inventory of all my files which are held in your office". Furthermore in a submission to this Office of 7th January 2013 the applicant stated that she believed a number of schedules/inventories of these records already exist in respect of these files.

However the Board have stated that while they retain a number of files supplied to them by the applicant, it is not their policy to create a schedule of such files nor are they obliged to create such an inventory under the FOI Act.

Therefore the position of the Board is that an inventory or schedule of files supplied to the board by the applicant does not exist because no such record was created. having considered the matter I see no reason to doubt the statement of the Board that it did not create the inventory of the files requested by the applicant. Therefore I am satisfied that the Board holds no record containing the information requested by the applicant. Accordingly, I find that it was justified in refusing access to the record sought 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 Board in this case.

Right of Appeal

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.


Sean Garvey
Senior Investigator