Case number: OIC-114063-S3G3Q0

Whether the Council was justified in refusing access, under section 15(1)(a), to records containing details of funds repaid to the Council by a named Councillor for travelling expenses in the period 2014 to 2017 on the basis that no records exist or can be found

 

13 June 2022

 

Background

It appears the applicant in this case was in correspondence with the Council concerning the alleged over-claiming of travelling expenses by a named Councillor. In an email dated 10 June 2021, he wrote to the Council on foot of the previous correspondence and requested a receipt for any funds repaid to the Council by a named Councillor. The Council acknowledged receipt of the request on 15 June 2021, wherein it said it understood the request to refer to travelling expenses in the period 2014 to 2017. In a decision dated 8 July 2021, the Council refused the request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist.

 On 19 July 2021, the applicant sought an internal review of that decision. He argued that a record should exist, and provided what he considered to be evidence of the alleged over-claiming, as well as a receipt of refund made to the Council by the named Councillor which the applicant described as money the Councillor had to return following an earlier examination of a submitted expense report. On 10 August 2022, the Council affirmed its refusal of the request under section 15(1)(a).

On 5 October 2021, the applicant applied to this Office for a review of the Council’s decision. In his application, he argued that a record should exist as he had supplied evidence in support of his allegations that the Councillor had over-claimed travelling expenses. He also said that if the records sought do not exist, it is because the Council failed to investigate the allegations of over-claiming.

During the course of the review, the Investigating Officer provided the applicant with details of the Council’s submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that the records sought do not exist, and she invited him to make a submission on the matter. The applicant made further submissions to this Office.

 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 applicant and the Council as outlined above and to communications between this Office and both parties on the matter. 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 Council was justified in refusing access, under section 15(1)(a) of the Act, to any receipts for funds repaid to the Council by a named Councillor in respect of travelling expenses for the period 2014 to 2017.

Preliminary Matters           

Before considering the substantive issue arising, I wish to make a number of preliminary points. I note that in his application for review, the applicant expressed concerns about the manner in which the Council dealt with the allegations he had made concerning the named Councillor. It appears he does not believe his allegations have been properly investigated, if at all. It is important to note that this Office has no role in examining the administrative actions of FOI bodies. It is not within our remit to examine how the Council dealt with the allegations made by the applicant. Our role is confined to an examination of whether the decision taken on his FOI request was justified.

Second, it is also relevant to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

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. 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 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 also 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 applicant has already been provided with details of the Council’s submission wherein it outlined the searches it undertook in an effort to locate relevant records and set out its reasons for concluding that no relevant records exist. Accordingly, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In summary, the Council’s position is that it conducted a number of searches and no relevant records were located. It said it discussed the matter with the Corporate Support Section and after conducting a search in the Cash Office, the Financial Management System and the Travel expenses records, its position was that a refund receipt for an assessment of travelling expenses for the period 2014 – 2017 does not exist.

The Council said that where an individual refunds an overpayment to its cash office, the refund is receipted under a specified income code that relates to miscellaneous income Corporate Receipts. The amount is then transferred from this code into the original revenue code it was charged against. The Council said that Integra is the Financial Management System (FMS) in use in the Council. However, it said that expenses are maintained on hard copy forms and manually entered into the FMS. As such, it said the hard copy forms were also searched for any relevant records, but no relevant record was found. The Council said that no records could be located as it had not received any repayments of any overpayments from the named Councillor involved for the period 2014 to 2017. In response to a specific query raised by this Office, the Council said that a refund was not sought for expenses relating to the period 2014-2017 as the period in question was too far back to accurately assess routes and distances.

While the applicant made a number of submissions to this Office, the general thrust of his submission is that he believes a full investigation should be undertaken of the named Councillor’s expenses. As I have explained above, this Office has no role in examining the administrative actions of the Council. Our role is confined to determining whether the Council was justified in refusing access to the records sought on the ground that no such records exist or can be found, having taken all reasonable steps to locate them.

Decision

 Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access, under section 15(1)(a), to records containing details of funds repaid to the Council by a named Councillor for travelling expenses in the period 2014 to 2017 on the ground that the records sought do not exist.

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.

Stephen Rafferty
Senior Investigator