Case number: OIC-129478-W6T8B5
22 February 2023
In a request dated 24 June 2022, the applicant sought access to copies of all records “of any nature (including handwritten notes and drafts, emails and letters received and issued submissions, memos, reports of meetings, internal communications and telephone conversations)” relating directly or indirectly to three complaints he made about developments near his property, as follows:
The applicant stated that he did not require any records of correspondence between him and the Council unless they contained additional handwritten notes or markings. He also indicated that he did not require copies of any records which are available on the Council’s website, once he was provided with details of their online location.
In a decision dated 12 August 2022, the Council stated that it had decided to grant his request. The decision maker stated that, as far as she could ascertain, the applicant was seeking access to records from three specific files relating to the matters concerned. The Council identified and released 18 records to the applicant in full, taken from the three files in question. On 16 August 2022, the applicant submitted an internal review request, as he was not satisfied that all relevant records had been provided. He queried the absence of additional records other than those contained in the files in question and provided details of the records he believed to have been omitted or which he considered to have been provided in an incomplete form.
On 16 September 2022, the Council varied its original decision. It identified five additional records, four of which it released in full. It refused access to the remaining record under section 15(1)(d) of the FOI Act, as the information was already in the public domain. The Council provided links to the relevant records on its website, as well as details of how the records could be inspected in its offices.
On 4 October 2022, the applicant applied to this Office for a review of the Council’s decision. In his request to this Office, the applicant provided details of additional relevant records he believed should exist. This list was provided to the Council during this review. I note that the applicant did not refer to the Council’s reliance on section 15(1)(d) to refuse access to records in the public domain in his application to this Office.
During the course of this review, the Council located additional records relating to the applicant’s request, which it released to him on 22 December 2022 and 3 February 2023.
The Council also provided details of the searches undertaken in order to locate relevant records in this case to this Office during the review. The Investigating Officer provided these details to the applicant and invited him to comment. The applicant remained of the view that further records relating to his request are held by the Council, which have not been released to him.
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 the applicant as well as his comments in his application for review and to the submissions made by the FOI Body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The applicant considers that further relevant records should exist. The Council’s position is that no further records relating to his request exist or can be found. This is, essentially, a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to additional records coming within the scope of the applicant’s request on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
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 his/her decision and 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.
As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purpose of this review. As noted above, these details were also provided to the applicant.
Essentially the Council’s position is that the records already released are the only records which could be located relating to the applicant’s request. The Council said that searches for records were carried out within its Planning Enforcement Unit, including searches of hardcopy and electronic files. It stated that any relevant electronic records would be held in the shared Planning Enforcement email inbox. It also stated that no staff members would hold any records relating to the applicant’s request in their individual email accounts. However, following further queries from this Office, the Council said that searches were carried out of the cloud version of the Planning Enforcement Unit’s Outlook account as well as within all four staff members’ individual email inboxes. The Council said that no relevant records have been destroyed and it maintained its position that no further relevant records exist or could be found.
In relation to the additional records released at internal review stage, the applicant noted that the versions provided by the Council to him were unsigned and that a staff member’s name had been redacted. During the course of this review, the Council provided an unredacted version of these records to the applicant and stated that the redactions and lack of signature had been an administrative error.
In response to a request for clarification form this Office, the Council acknowledged that other staff members in the Council, apart from staff in the Planning Enforcement Unit, such as Customer Services, had exchanged correspondence with the applicant. However, the Council clarified that searches had only been conducted within the Planning Enforcement Unit in response to his request. It said that the decision maker in the Planning section would have had “no authority” to search other departments within the Council. Following further correspondence from the Investigating Officer, the Council carried out searches within its Customer Service unit and released the records located to the applicant.
In its submissions to this Office, the Council contended that the applicant had sought to broaden his initial request at internal review stage; it stated that this was not permitted under the FOI Act. The Council stated that the applicant’s request was assigned to the Enforcement Planning section due to the subject matter and confirmed that no searches were carried out in any other unit/department of the Council. It also stated that it had confirmed to the applicant in its letter acknowledging his original request, that the request would be handled solely by the Enforcement Planning section of the Council.
This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Nonetheless, section 15(1)(a) requires an FOI body to take all reasonable steps to locate relevant records.
In this case, I am satisfied that the applicant’s request, which sought access to a number of different types of records, could have reasonably been considered to cover a number of different sections of the Council. It also seems to me that if there was any confusion over the scope of his request, the Council could have engaged with him to clarify matters. Furthermore, I do not accept that the Council’s acknowledgement letter clearly stated that it was proceeding on the basis that the applicant solely sought access to records held by the Planning Department of the Council. While the Council’s acknowledgement letter to the applicant on 29 June 2022 stated that the decision maker handling his request was based in the Planning Department, it did not state that this was the only section which would be searched for relevant records. In its submissions to this Office, the Council stated that the wording used in its acknowledgement letter would have been very different if other sections of the Council were to be involved in locating relevant records. However, it seems to me that the significance or otherwise of who the decision maker was and in which section she worked would not have been clear to the applicant or to any other party reading the acknowledgement letter.
Additionally, I am satisfied that the applicant’s internal review request did not seek to broaden the scope of his original request, but that rather, he was clarifying which additional records he believed to exist and had not been provided. Furthermore, although the Council stated in its submissions to this Office that, in its view, the applicant had attempted to broaden the scope of his request in the internal review request, I note that there was no reference to this in its internal review decision.
In light of the above, I am not satisfied that reasonable searches were undertaken by the Council to locate all records relating to the applicant’s request in this case. Accordingly, I find that the Council was not justified in refusing access to additional records on the basis of section 15(1)(a), as it has not demonstrated that it has taken all reasonable steps to ascertain the whereabouts of all relevant records in this case.
In the circumstances, I consider that the most appropriate course of action to take is to annul the Council’s decision, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s decision. In processing the applicant’s request, I would encourage the Council to engage with the applicant in the first instance before the request is considered afresh with a view to coming to an agreement on the precise nature of the records sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified in refusing access to additional records relating to the applicant’s request on the basis of section 15(1)(a) of the FOI Act. I direct the Council to undertake a fresh decision-making process in respect of the applicant’s request.
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.