Case number: OIC-103671-M4Y3H5

Whether the RSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain records relating to its Public Consultation process for the Road Safety Strategy 2021 – 2030 on the ground that the records sought do not exist

4 May 2021

Background

In a request dated 30 November 2020, the applicant sought from the RSA answers to a number of questions regarding the Public Consultation process that the RSA was conducting for the Road Safety Strategy 2021 – 2030. The questions were as follows:

  1. The names of Indecon Economic Consultants, Chief Executive Officer CEO, Directors and Board Members commissioned by the Road Safety Authority RSA to analyse the Public Consultation Responses for Government Road Safety Strategy 2021 – 2030.
  2. The name of the RSA Official who Commissioned Indecon Economic Consultants.
  3. Which of the five known Transport Research Laboratory TRL stopping distance formulas will Indecon be using when analysing the Consultation Responses.
  4. Why were the 1998 – 2002 and 2004 – 2006 Government Strategy for Road Safety Reports which were used by the RSA, not made available for Public Consultation.
  5. Why was TRL, Wegman, Quimby, Cameron, Newstead and others used by the RSA since 2006 and the Rules of the Road since 1957, not again commissioned by the RSA.

In a decision dated 22 December 2020, the RSA stated that it was part-granting the applicant’s request. It provided a record in relation to part 2 of the applicant’s request, containing the name of the RSA official who signed the contract with Indecon on behalf of the RSA. It refused the remainder of the request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.

The applicant sought an internal review of that decision wherein he expressed concerns about the accuracy of past road crash statistics, following which the RSA affirmed its decision. On 12 February 2021, the applicant sought a review by this Office for a review of the RSA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the applicant and the RSA and to the correspondence between this Office and both parties during the review. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the RSA was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to its Public Consultation process for the Road Safety Strategy 2021 – 2030 on the ground that no further relevant records, apart from one already released, exist or can be found.

Preliminary Matters

In his application to this Office for a review of the RSA’s decision the applicant expressed concerns about the reliability of certain stopping distance formulae. 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.

Analysis and Findings

Section 15(1)(a) 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 role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body insofar as those practices relate to the records in question.

During the course of the review, the RSA made submissions to this Office in which it explained why it would not hold any further relevant records and also provided details of the searches conducted for relevant records. As this Office has already provided the applicant with the relevant details, I do not consider it necessary to repeat them in full here.

In summary, the RSA said it conducted both electronic and hardcopy searches in the Research and Driver Education Directorate within the RSA. It said it did not hold any records that would contain the answers to questions 1, 3, 4, and 5 posed by the applicant in his request. In relation to question 1, it explained in its decision letter to the applicant that it did not commission specific Indecon staff members such as the CEO, Directors and Board Members to work on the project. Rather it was up to Indecon to propose the team based on its personnel available with the requisite knowledge, skills and experience for the task. It provided details of Indecon’s lead contact on the project.

In relation to question 3, the RSA said that Indecon was commissioned to analyse and report on the responses made to the public consultation, that this analysis would not involve any stopping distance formulas, and therefore no records exist. In relation to question 4, it said it does not hold any records that contain reasons why the 1998-2002 and 2004-2006 Road Safety Reports were not made available for public consultation. It noted that those Road Safety Reports were created prior to its establishment in 2006. In relation to question 5, it said that a public consultation was held to inform the 2013-2020 Road Safety Strategy, but the analysis of the responses was conducted internally by the RSA and there was no report produced on the findings of this analysis. It stated that the parties listed in part 5 of the applicant’s request had not been commissioned to carry out any public consultation, and therefore no records exist.

It is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter, regardless of a requester’s views as to the appropriateness or otherwise of the absence of certain records.

Having considered the details of the searches undertaken and its explanation as to why no further records exist, I am satisfied that the RSA has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the RSA was justified in refusing access to any further relevant records on the ground that no such records exist.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the RSA to refuse access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant’s request regarding its Public Consultation process for the Road Safety Strategy 2021 – 2030 other than the one already released on the ground that no further relevant records 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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator