Case number: OIC-109746-R5F4M4
1 April 2022
In a request dated 11 January 2021, the applicant submitted a request for records to Cork County Council and sought the following:
In a decision dated 11 February 2021, the Council part granted the applicant’s request, releasing records pertaining to items 1, 5, 6 and 9 of the request. It refused access to records regarding items 2, 3, 4, 7 and 8 of the applicant’s request citing section 15(1)(a) of the Act, as its basis for refusal, stating “that the records concerned could not be found after all reasonable steps to ascertain their whereabouts had been taken.” The applicant submitted a request for internal review, and a final decision on the matter issued on 22 March 2021. The Council’s internal review decision varied the original decision and released countywide figures for item 7 of the request. In respect of item 2, the Council stated that it does not have such a record and as such upheld the original decision. In relation to items 3, 4 and 8, the Council clarified it is not in possession of any record from which such figures could be extrapolated, and so the original decision was upheld. On 30 June 2020, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, the Investigator provided the applicant with details of the Council’s submissions wherein it described the searches undertaken to locate relevant records and invited him to make submissions in response to those searches. Submissions were received from the applicant on 1 December 2021.
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 relevant parties, the correspondence between the applicant and the Council, and the correspondence between both parties and this office. I have also examined the records at issue/had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In his application for review of the Council’s decision, the applicant asked this Office to look at:
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. Accordingly, this review is concerned solely with the question of whether the Council was justified in refusing access, on the basis of section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant’s request.
It is important to note 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. Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
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. The Commissioner's 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 consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.
In its submissions to this Office, the Council stated that it is guided by the LGMA national retention policy in conjunction with following its own retention policy for records. It confirmed that no records were destroyed in relation to this request, and all records available were obtained by staff. It further clarified, that any records relating to finance/budget are stored electronically on the Integra system and clarified that the Housing Directorate took the following steps when attempting to locate relevant records:
The Council further clarified that it does not have a points or scoring system for the allocation of social housing. According to the Council’s submission, the system used is a choice-based letting system, which allows applicants to bid on housing available in their preferred area. Accordingly, any bids made are assessed by the Housing Officer. The Council stated that these are based on priority of need on a case-by-case basis, using the applicants housing file. The Council further clarified that the applicant’s full housing file was made available to him as part of another FOI. In relation to items 3 and 4, it stated that there is no category of traveller or non-traveller on the housing list, and that in relation to item 8 there was no records available on traveller accommodation budget spent or unspent to print out or extrapolate. In relation to item 7, the Council clarified that the traveller accommodation budget is not categorised in Local Areas as per the request, and that the applicant was provided with the county-wide budget figures during the course of an internal appeal process on another FOI submitted by the applicant.
The Council stated that it is satisfied that the information in question was not easily available for extraction, as the information is contained across a number of databases and manual records. It has also stated that a narrow scope was not taken to the request and that where information is available to this or any FOI request the Housing Unit releases same. It has further stated, that it does not and is not required to compile reports under the FOI Act 2014 and that this was explained to the applicant that the process of FOI is to release records that are available and under their control.
The Council released information in relation to second FOI request submitted by the applicant, which covered aspects of the request including traveller accommodation policy from 2014 – 2018, and 2019 – 2024. It also released the budget allocations for traveller accommodation in relation to the relevant years, in conjunction with the social housing revenue budget.
In his final submissions to this Office, the applicant argued that the Council had provided insufficient detail around what locations it actually checked for records, and rejected the statement regarding checking whether records were accessible on a paper or electronic directory as inadequate. The applicant further stated that there is no requirement as to accessibility in the FOI Act. He did not provide any additional evidence as to possible locations of records. He argued that the Housing Directorate has provided responses, which are too narrow and opaque in relation to the searches that they have conducted.
In relation to the Council’s statement that the data is not available for extraction, the applicant has argued that section 17(4) of the Act is applicable and that in taking the reasonable steps prescribed by the Act, if any records had been created during the process of collating information, those records must be disclosed. He stated that the qualification in reference to the Housing Social Operations Unit and the Housing Finance unit was too opaque and narrow. He has also stated that the Council has set out that candidates for any allocation are assessed on the basis of need, and that this must involve some level of comparison between one applicant and another. He stated that whether this is described as a scoring system or not, it is this assessment comparison system he is looking for.
In his original appeal to the Council, he submitted that records would be available for the North Cork area, or for the whole county, which in his belief records could be extracted from. He has also submitted that the Council is required to keep records for a minimum of six years, and that in some cases personal records are held a lot longer. He further submitted that records from January 2015 should be available as a number of reports make reference to them, and that the request is therefore for records which include records under whatever heading or criteria filed which may include some or all of the records requested, and that these should have been furnished. He argues that in order to stay compliant with Traveller policy and practice it is necessary to maintain a traveller designation for each traveller family/applicant for housing. He contends that on that basis, it is possible to extract any traveller related data/records held by the Council, and it is this data or records that items 3, 4, 7 and 8 refer to. In relation to item 2 of the applicant’s request, he sets out that he is seeking the lists of applicants/candidates for social housing maintained by the Council, which he believes would be updated and maintained.
The applicant has also stressed that he was not offered assistance in the preparation or refinement of his request as is provided for under section 12(6). In an additional letter provided by the applicant he argues that in response to a previous FOI request, the Council decision maker stated that they “can only make a decision on the records I am given” and failed to query those who provided the records.
A final opportunity was offered to the Council to provide more detail on the steps taken when searching for records. Elaboration was sought in relation to the points made in the appellant’s submission such as the lack of detail in relation to the searches carried out and what specific actions were taken during those searches. In the Council’s response, it re-iterated that items 2, 3, 4, 7 and 8 do not exist. It stated that the Senior Executive Officers (SEOs) would have known this upon seeing the request. It further claimed that in the process for FOI requests the SEOs would indicate this to the FOI Liaison Officer in Housing. The SEOs would then follow the procedure to see what other records could be provided to respond to the request. The Council set out that its process for FOIs in the housing directorate is as follows; The FOI office sent the FOI request to Housing Directorate. The FOI Liaison Officer then sent the request to the SEOs in the relevant Housing section/s for response. It clarified that this was the finance and social operations unit. The request was circulated to relevant staff to commence the search. The FOI liaison officer was contacted verbally and by email to advise what was or was not available. The relevant records were forwarded by email in order to co-ordinate the response. According to the Council, the SEOs indicated to the liaison that records relating to items 2,3,4,7 and 8 were not available as requested, but that they would seek and gather any other available records. In the case of the Finance records relating to items 7 and 8, which covered budgets spent and unspent, it was stated that the figures were not available as requested. The Council stated that staff in the finance unit were asked to check what was accessible on the Integra Financial Software system in lieu of these.
The Council further noted that its financial management system expenditure on Travellers is recorded on a Countywide basis and reports on same are not available by area. It further clarified that the appellant was provided with the countywide figures as part of a previous FOI. It was established that there were no physical searches for files required for the above points. In relation to point 2, the Council has stated that it does not have a points or scoring system for the allocation of social housing but that it operates a Choice Based Letting system, which allows applicants to bid on housing available in their preferred area. Any bids made are assessed by the Housing Officer based on priority of need, on a case by case basis, using the applicants Housing file. The Council reiterated that it provided the applicant with a copy of his housing file, following a previous FOI request. With regard to items 3 and 4, the Council argued that there is no category of need for ‘Traveller’ or ‘Non Traveller’ on the Housing list and these records do not exist. It stated that it is the case that an identifier is to be introduced soon, and it is awaiting legislative approval from Government to introduce a category for Traveller and Non Traveller within the process of applications for Social Housing.
As set out above, in the appeal to this office, the applicant outlined four areas for review. The Council in its submissions to this Office has provided its reasons for relying on section 15(1)(a) of the FOI Act, and in most cases it sought to provide the applicant with alternative information in the place of any item of the request to which no information could be found. This ties in to the second aspect of the applicant’s appeal, which covers records to which full release was purported but not made. Overall, I am satisfied that the Council has attempted to provide additional information where items specifically requested were not available. It has also clarified the difficulty of extrapolating the information requested, or explained that such information was released in line with previous FOI requests to the same applicant. In my view, the Council has not purported full release in line with the original request but it has tried to accommodate the applicant as far as possible in both cases.
The applicant has sought this Office’s review of the Council’s refusal of records on the basis that the length of time to which the FOI request is made does not correspond with the category of records held. On consideration of the original request and the Council’s provision of information on internal review, it appears that the majority of information was provided in line with the time categories set out by the applicant. With regard to the applicant’s claim that section 17(4) is applicable, the provision sets out that “reasonable steps” shall be taken to extract data where an FOI request relates to data contained in one or more record held by or on an electronic device. The Council has advised that the information sought is held across a number of electronic and hard copy files and would require a manual calculation to extrapolate the figures. While a new record, which is created following the extraction of information from an electronic device, may be released under section 17(4), there is no requirement on the Council to respond to an FOI request by collating information from electronic or hard copy files to create a new record. On that basis, I am satisfied that section 17(4) is not applicable.
In relation to the remaining item set out in the applicant’s appeal, I am not of the view that the Council has taken a narrow view of the request. In its final submissions to this office it has outlined that the applicants have been provided with his housing file. Additionally, the Council has attempted to provide alternative information where it did not have exact corresponding information.
Section 15(1)(a) 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. In consideration of whether or not the Council has taken “all reasonable steps”, in relation to this request, I have considered whether the Council has taken a narrow interpretation of the request, whether there could have been better engagement with the applicant and whether it extended the search for records far enough.
The onus is on the Council to satisfy this Office that its decision was justified in finding that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken. As previously mentioned, the Council refused access to records 2, 3, 4, 7 and 8 on the basis they do not exist. In relation to item 2 of the request, the Council has clarified that it does not have a points or score based system for the awarding of social housing however, it does operate a choice based letting system. On that basis, I am of the view that the Council took a narrow view of this item in the request. The applicant requested housing lists on which the applicants appeared in the last five years delineated by a number of criteria. I accept that the Council does not use the specific criteria set out in the request. However, the Council holds housing lists and these should have been assessed for release to the applicant, to include any information that is relevant to his request.
I am satisfied with the explanation given in relation to items 3, 4, 7 and 8 in that no further records exist or can be found after reasonable searches were carried out. The Council’s Traveller Accommodation policy was provided as part of another FOI appeal by the same appellant. The 2014 – 2018 and 2019 – 2024 policies state that Traveller as a basis of need category for housing was removed and households were reassigned under alternative criterion. Considering each of these items relate to Traveller Accommodation, I am satisfied that this reflects the Council’s position as set out in its submissions.
In the circumstances, I consider the most appropriate course of action is for me to vary the Council’s decision. I hereby annual its decision to refuse item 2 of the applicant’s request under section 15(1)(a) of the FOI Act, for access to housing lists on which the applicants appeared in the last five years. I direct the Council to conduct a fresh decision making process in this record.
I affirm the remainder of the Council’s decision under section 15(1)(a) of the FOI Act.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.