Case number: OIC-100581-R0K4M0

Whether the Department was justified in refusing access to the information sought on the basis that section 15(1)(a) of the FOI Act applied

23 March 2021

Background

In a request dated 5 October 2020, the applicant submitted a seven part request to the Department for a wide range of information relating to telephone contacts he had with the Department, including times and dates, recordings and transcripts of the conversations and voicemails left, records of phone calls and/or meetings which referred to or discussed his calls about the study done concerning the development of a youth centre at a named location, records of any complaints made about his calls or messages, and information relating to any complaint about him.

In a decision issued on 4 November 2020, the Department identified and released one record and refused access to any further relevant records under section 15(1)(a) of the FOI Act, on the ground that no such records exist. On 9 November 2020, the applicant sought an internal review of the Department’s decision, following which the Department affirmed its decision. On 1 December 2020, the applicant sought a review by this Office of the Department’s decision.

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 submissions made by Department in support of its decision. During the review, the Investigator provided the applicant with details of the Department’s submission wherein it outlined the steps taken to locate relevant records. In response, the applicant indicated that he wished to receive a formal decision on the matter.  Therefore, I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records coming within the scope of his request on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a)

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. In such cases, the role of this Office 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 his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

It is important to note that the role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist. The Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

As I have indicated above, the Investigator informed the applicant of the details provided by the Department as to why no further records could be found and of the searches undertaken to locate relevant records. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision. I also note that the applicant did not comment on the details provided, nor did he provide any information to support his contention that further relevant records might exist.  

In its submissions to this Office, the Department said it manages written and email correspondence using the digital platform eCorrespondence.  Where contact is made by phone, the information is passed on to the relevant business area by phone or email.  Searches of this platform for the relevant business area were carried out and no records were identified.  Phone calls are not recorded by any section of the Department. Voicemails are not required to be kept as records and are normally deleted, once the matter has been forwarded to the relevant business area. Emails of relevant staff members were examined by each individual on their official computers and one relevant email was found, which was released.

The Department provided information in relation to each part of the request, and the applicant was provided with this information.  In summary, the Department said it does not keep logs or transcripts of calls received.  It said it obtained confirmation from its phone service provider that details of calls received are not visible on any of its bills. It said voicemails sought were deleted and so no records were available to transcribe. It added that no relevant meetings were held and no official complaint was made. Its position, therefore, is that apart from the one record released, no further records were identified and there is no evidence to show that such records were created in the first place.  The Department also said that the Minister of State’s mobile phone is his personal mobile phone number and is used for constituency matters. It said it does not hold records relating to the Minister’s personal mobile phone.  The Department confirmed that it had regard to CPU Guidance Note No. 24, which relates to official information held in non-official systems.  Phone records for this phone were checked and no relevant records were found.

Having considered the details of the steps taken by the Department and its explanation as to why no further records exist or can be found, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Department was justified in refusing access to further records apart from the one already released on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department and find that section 15(1)(a) applies.

Right of Appeal

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Stephen Rafferty

Senior Investigator