Case number: OIC-96511-Y7P6L2
22 April 2021
This matter has its background in judicial review proceedings the applicant brought against the Council and a specified notice party. The applicant was successful in his action and the High Court made an order for costs against the Council. The order also provided that the Council was to recover a third of the applicant’s costs from the notice party to the proceedings. I understand the applicant’s costs were discharged in full by the Council.
In July 2019, the applicant submitted a request to the Council for information relating to the costs, including details of the amount of costs recovered from the notice party. In its decision, the Council informed the applicant that no costs had been recovered.
In a subsequent request dated 6 August 2019, the applicant sought access to all records relating to the work taken by the Council to recover costs from the notice party or alternatively, if the Council had not taken steps to recover costs from the notice party, all records relating to that decision by the Council. The Council refused access to four records it identified as relevant to the request. The applicant sought a review by this Office of that decision. Case number OIC-60599 refers.
In my decision of 18 May 2020 in that case, I found, amongst other things, that the Council had not taken all reasonable steps to search for all relevant records as it had confined its search to records held in the legal file in the County Solicitors Office. While I affirmed the Council’s decision to refuse access to the four records it had located, I directed it to conduct a fresh decision-making process in respect of the applicant’s request on the basis that it may hold additional relevant records coming within the scope of the request.
In a decision dated 15 July 2020 following its fresh consideration of the request, the Council refused the request under section 15(1)(a) of the FOI Act and provided some details of the searches undertaken. The applicant sought an internal review of that decision on 3 August 2020, following which the Council affirmed its refusal of the request on 25 August 2020, wherein it provided some further details of searches undertaken.
On 4 September 2020, the applicant sought a review by this Office of the Council’s decision. During the course of the review, the Investigator provided the applicant with the details of the searches undertaken by the Council for relevant records. In response, the applicant raised concerns about the lack of records but did not provide any information to suggest that further records should exist.
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 correspondence between the applicant and the Council as outlined above, and to the correspondence between this Office and both parties on the matter. 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 records relating to the recovery of costs in connection with specified legal proceedings apart from those records previously considered in Case OIC-60599, on the ground that no further relevant records exist or can be found.
The applicant raised a number of issues regarding the Council’s handling of the underlying matter, including the fact that no costs were recovered by the Council. It is important to note at the outset that this Office has no role in the investigation of complaints regarding the manner in which 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. 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. Moreover, 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 of the searches undertaken by the Council 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. The details provided of searches carried out include the following:
According to the Council, having carried out all of the searches referred to above, no additional records have been identified apart from those dealt with in Case OIC-60599.
Having considered the information provided by the Council of the steps taken to search for records relevant to the request, and in the absence of evidence to suggest otherwise, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records in this case. I find, therefore, that the Council was justified in refusing access to further relevant records, apart from those dealt with in Case OIC-60599, on the ground that no further 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 Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse, under section 15(1)(a) of the Act, the applicant’s request for additional records relating the recovery of costs in connection with specified legal proceedings apart from those records previously considered in Case OIC-60599, on the ground that no further relevant records exist or can be found.
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.