Case number: OIC-133177-B9G1N3

Whether the IPS was justified, under section 11 of the FOI Act, in refusing access to records sought by the applicant relating to an incident that took place in [a specified facility] in 1988 on the ground that the FOI Act does not provide for a right of access to the records sought as they were created prior to the effective date of the FOI Act as it applies to the IPS, i.e. 21 April 1998

 

28 February 2023

 

Background

In a request dated 14 September 2022, the applicant sought access to information relating to an incident in [a specified facility] on 18 May 1988.

In a decision dated 17 November 2022, the IPS refused the applicant’s request under section 11(1) of the FOI Act, on the basis that the request was in the form of a number of questions, it did not specify the record(s) sought and that therefore it was an invalid request. On 23 November 2022, the applicant sought an internal review. In a decision dated 10 December 2022, the IPS upheld its original decision. On 13 December 2022, the applicant applied to this Office for a review of the IPS’s decision.

In submissions made to this Office during the course of this review, while the IPS continued to maintain that the applicant’s request was invalid, it also argued that any records containing answers to the questions posed by the applicant would have been created before the effective date of the FOI Act for the IPS (21 April 1998). This Office’s Investigating Officer wrote to the applicant on 24 January 2023. She outlined the provisions of section 11(5) relating to access to records created before the commencement of the FOI Act, and informed him of her view that the IPS was justified in refusing his request on the basis that the records sought were created before the effective date. She invited him to make submissions on the matter. The Investigating Officer contacted the applicant again on 15 February 2023. No response has been received from the applicant to date.

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 IPS and the applicant as outlined above; as well as the submissions made by the IPS in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the IPS was justified in its decision to refuse the applicant’s request for records relating to the incident in [a specified facility] on 18 May 1988 under the provisions of the FOI Act.

Analysis and Findings

Pre-commencement records

Section 11 of the Act provides for a right of access to records held by public bodies that were created on or after the effective date. The effective date in respect of the IPS is 21 April 1998. In its submissions to this Office, the IPS said that any records relating to the applicant’s request, should they exist, would fall to be refused as they would have been created before 21 April 1998 and, as such, would comprise pre-commencement records.

Section 11(5) provides for a right of access to records created after the effective date in certain limited circumstances, namely where:

 

“a) access to records created before the effective date is necessary or expedient in order to understand records created after such date, or

 

b) records created before the effective date relate to personal information about the person seeking access to them,”

 

As any relevant records were created before the effective date, no right of access to such records exists unless either paragraph a) or b) applies. I note that the IPS has not argued that section 11(5)(a) applies in this case. I also note that the applicant has not identified any record created after 21 April 1998 that cannot be understood without access to records created before this date. Without an identified record that was created after 21 April 1998, I cannot find that section 11(5)(a) applies.

The IPS is of the view that records relating to the incident concerned, if they existed, would not contain the personal information of the applicant in this case. The applicant has made no arguments that the records contain personal information relating to him.

Section 2 of the Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information that, without prejudice to the generality of (a) or (b), is personal information for the purposes of the Act.

My understanding is that the incident concerned occurred when the applicant was employed as a staff member of the IPS. Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the name of the individual is excluded, as is information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions stated.

I have had close regard to the wording of the applicant’s request, to the nature of the incident concerned and to the likely nature of any records relating to these matters. In the absence of any arguments to the contrary, I am not satisfied that section 11(5)(b) applies to the information sought by the applicant in this case. I find, therefore, that section 11(5) in its entirety does not apply.

Accordingly, I find that the IPS was justified in refusing the applicant's request on the ground that any records containing the information sought were created before the effective date of the FOI Act and that the FOI Act does not provide a right of access to such records.

Invalid request

Section 11(1) of the FOI Act provides every person with the right of access to any record held by an FOI body. Section 11(2) provides that an FOI body shall give reasonable assistance to a person who is seeking a record under the FOI Act.

The IPS refused the applicant’s request initially on the basis that it took the form of questions, rather than a request for records. For the benefit of the applicant, it is important to note that requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The FOI Act does not require public bodies to create records if none exist and does not oblige public bodies to answer general queries. Furthermore, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

I have carefully examined the applicant’s request and I am satisfied that for the most part, he sought answers to questions rather than access to records. However, the IPS confirmed to this Office during the course of this review that it did not offer assistance to the applicant in relation to amending his request so that it was a valid request for access to records. As noted above, an FOI body is obliged to give reasonable assistance to a requester when processing a request. While I have found above that the IPS was justified in refusing access to pre-commencement records in this particular case, I would expect it to ensure that assistance is offered to such applicants in future.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision. I find that the IPS was justified in refusing access to records containing the information sought by the applicant on the ground that they were created before the effective date of the FOI Act and that the Act does not provide for a right of access to such records.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

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Sandra Murdiff
Investigator