Case number: OIC-134937-V5R8R1
9 August 2023
The applicant’s FOI request of 29 September 2022 sought access to any correspondence relating to him, as between the Council and a named doctor and any other parties. He also sought access to minutes of a particular meeting concerning him.
The Council’s decision of 10 January 2023 refused the request, which it noted had been received on 5 October 2022, under section 30(1)(a) of the FOI Act (investigations of an FOI body).
On 11 January 2023, the applicant sought an internal review. The Council’s decision of 31 January 2023 affirmed its refusal of the request. It relied on section 29(1) of the FOI Act (deliberative processes) as well as section 30(1)(a).
On 31 January 2023, the applicant applied to this Office for a review of the Council’s decision. During the review, the Council confirmed that, as part of a process outside of FOI, it had provided the applicant with full copies of the records considered in the above FOI decision-making process. I advised the applicant accordingly. The applicant responded that he believes the Council holds further correspondence with the named doctor.
Further to my queries with it on the matter, the Council stated that it holds no further records of correspondence with the named doctor which were created before receipt of the FOI request. It says, however, that there exists such correspondence that was created after 5 October 2022. The applicant is not satisfied with the Council’s position.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Council and the applicant, as well as to the provisions of the FOI Act.
The scope of the review is confined to whether the Council was justified in its refusal of further correspondence with the named doctor.
The applicant says that this review should extend to the correspondence with the named doctor that were created after his FOI request was received. He says that he needs the records in order to vindicate his rights.
However, section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request. Furthermore, it is well established that the FOI Act provides for a right of access only to records that exist at the date of receipt of an FOI request. This is evident from the wording of Section 12(1) of the FOI Act (see link), which sets out how an FOI request for a record must be made. In particular, section 12(1)(b) provides that such a request shall contain “sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps".
This Office takes the view that the wording of Section 12, and particularly clause (b), indicates that a request can only be made for a record which was in existence at the time of the request. Thus, while the Council confirms that it holds records of correspondence with the named doctor that post-date 5 October 2022, I am satisfied that such records are not covered by the applicant’s request. It follows that this review cannot extend to the records concerned. The applicant is aware that it is open to him to make a fresh FOI request for these records.
Section 15(1)(a) of the FOI Act – reasonableness of searches/records do not exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records.
As noted above, the Council states that it holds no further correspondence with the named doctor that were created before 5 October 2022. This is, effectively, a claim that section 15(1)(a) applies to such records. The applicant does not accept the Council’s position.
I note that the Council did not provide the applicant with a schedule of the records covered by its decisions. However, notwithstanding this, I note that at no point in the appeals process did the applicant express any concerns that the Council's searches for correspondence with the named doctor may not have been adequate. Accordingly, the Council’s decisions do not address this matter.
The role of this Office is not to effectively act as a first instance decision maker. In the circumstances, it seems to me that the most appropriate decision to make is to annul the Council’s effective application of section 15(1)(a) to the relevant records. I direct the Council to conduct a fresh decision making process on the applicant’s contention that it holds further correspondence with the named doctor that were created before 5 October 2022. It is open to the applicant to provide the Council with details of why he believes such further records may exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s effective application of section 15(1)(a) to further correspondence with the named doctor, as held before receipt of the request in this case. I direct the Council to conduct a fresh decision making process on this matter.
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.