Case number: OIC-133770-Y1V3C9

Whether the IPS was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to FOI requests submitted by the applicant

 

3 May 2023

 

Background

In a request dated 28 August 2022, the applicant requested access to a list of the names and job titles of all civil servants and/or officials from the IPS and/or the Departments of Defence, Justice and/or Finance, and/or Information Access officials or earlier similar titles and prison officers of all ranks who had “received, processed and made decisions on each individual [FOI] request” submitted by him. The applicant also sought access to a list of the names and job titles of individuals who had made internal review decisions where he had appealed the refusal of his FOI requests.

In a late decision dated 17 November 2022, the IPS part-granted the applicant’s request. It stated that it did not hold any records relating to the Departments of Defence, Justice or Finance and suggested that the applicant might wish to submit requests to these FOI bodies directly. The IPS also said that the names of Information Access officials or earlier similar titles who had received and processed his FOI requests had been included in correspondence to him relating to those previous requests. It refused this part of his request on the basis that records containing this information was already available to him (under section 15(1)(i) of the FOI Act). The IPS also provided a table containing the names and titles/sections of IPS staff members who had acted as decision makers on the applicant’s nine FOI requests and two internal review requests from 2008 to 2022.

The applicant requested an internal review on 23 November 2022. The IPS affirmed its original decision on 10 December 2022 on the same grounds as above.

On 9 January 2023, the applicant applied to this Office for a review of the IPS’s decision. When asked to clarify what aspects of the decision he was appealing, the applicant stated that “more documents surrounding the named civil servants, especially in 1989” should exist. The Investigating Officer asked the IPS to provide details of searches undertaken to locate records relating to the applicant’s FOI requests prior to 2008. During the course of this review, the Investigating Officer provided the applicant with details of the IPS’s submissions where it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records existed or could be found. The Investigating Officer invited the applicant to make further submissions on the matter. While the applicant did not make any substantive arguments in this regard, he indicated that he did not accept the IPS’s submissions.

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 IPS in support of its decision and to the applicant’s submissions and correspondence with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

As noted above, the IPS released a table containing details of the decision makers on the applicant’s FOI requests from 2008 to 2022. It refused to release records relating to the applicant’s earlier FOI requests under section 15(1)(i) of the FOI Act, on the basis that records containing the information sought were available to the applicant. While the applicant did not dispute this, he indicated to this Office that he believed that additional records containing the information sought regarding previous FOI requests should exist. The IPS’s position is that no further relevant records exist or can be located. This is, essentially, a refusal of his request under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is solely concerned with whether the IPS 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 cannot be found or do not exist after all reasonable steps have been taken to locate them.

Preliminary Matters

While the applicant appears to be of the view that records relating to the staff members who made decisions on his FOI or internal review requests from 1989 onwards should exist, it is important to note that the Freedom of Information Act 1997 did not come into effect until 21 April 1998. Accordingly, the applicant could not have made an FOI request before that date.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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 their 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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

As I have outlined above, the IPS provided this Office with details of the searches it said it undertook in an effort to locate further relevant records and its reasons for concluding that no further records exist or can be found. The Investigating Officer provided the applicant with an outline of the IPS’s submissions as to why it did not hold any further records. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submissions to this Office, the IPS stated that it carried out searches of relevant areas, including its Information Access Office database and Document Library Management System. In response, the applicant simply noted that none of these units or departments were in existence during his time as a Prison Officer. In response to further queries from this Office, the IPS’s position was that it only holds records in relation to the applicant’s FOI requests from 2008 onwards. It stated that searches were carried out on all paper and electronic records in the applicant’s IPS personnel file. Its position was that records relating to any FOI requests made by the applicant before 2008 are likely to be held by the Department of Justice, rather than the IPS.

On the matter of whether the IPS holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record(s) sought.

I have reviewed the IPS’s explanation as to why it concluded that no further records exist, as well as the applicant’s comments. In the circumstances, I am satisfied that the IPS has adequately explained why it concluded that no further records relating to the applicant’s request exist or can be located by the IPS. According I find that the IPS was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records on the ground that no further records exist or can be located.

Finally, I note that the applicant’s request to the IPS included records relating to decisions made by the Departments of Justice, Finance and Defence. I am satisfied that the IPS does not have access to any relevant records held by these separate FOI bodies. As noted by the IPS it is, of course, open to the applicant to make FOI requests to these bodies for access to relevant records if he so wishes.

As I have found that the IPS’s decision to refuse access to additional records on the basis that they cannot be found or do not exist, I am not required to consider its reliance on section 15(1)(i). Although I note that it appears that the IPS sought to refuse the request in this case without having first established whether the records sought actually exist or were held by it. It seems to me that this is the first step a body should take when processing a request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IPS’s decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request.

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