Case number: OIC-132208-D8J0H9

Note: This decision was appealed to the High Court by the applicant on 31 March 2023. In an ex tempore judgment delivered on 23 January 2024, Owens J. dismissed the appeal.

 

Whether the Council was justified under section 15(1)(a) of the FOI Act in refusing access to records relating to the applicant held in the housing department of the Council

 

3 March 2023

 

Background

In a request dated 1 September 2022, the applicant sought access to a copy of his housing file, all and any correspondence that the housing department in the Council held regarding to him, all decisions regarding his housing application, a copy of the reason why his discretionary Housing Assistant Payment (HAP) cap raise was withdrawn, all documents, correspondence notes and memos regarding him and his housing application.  The applicant additionally requested all records of contact through email and letters with a number of named individuals in the Council. On 30 September 2022, the Council issued a decision part granting the applicant’s request and provided the applicant with records containing redactions under section 37 of the FOI Act. On 12 October 2022, the applicant made an internal review request stating that he had not received any records regarding the withdrawal of his discretionary HAP raise in 2022. On 2 November 2022, the Council issued an internal review decision affirming its original decision and informed the applicant that an additional record had come into existence as a result of his FOI request. It released this record to the applicant. On 10 November 2022, the applicant applied to this Office for a review of the Council’s decision.

During the course of this review, the Council located and released additional records to the applicant. The applicant was of the view that further records should exist relating to his request. His comments were put to the Council, which made a number of additional submissions to this Office in response. During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined its reasons for concluding the additional records relating to his request do not exist. While the applicant made no further submissions, he indicated that he wished this review to proceed to a decision.

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 applicant and the Council.  I have also had regard to the contents of the records located and provided to the applicant by the Council.  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, under section 15(1)(a) of the Act, to release additional records relating to the applicant’s request.

Preliminary Matters                                                                        

I note that the applicant stated during the course of the review that he is looking for reasons about changes to his HAP payment. It is important to note that the FOI Act does not require FOI 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.

Additionally, 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 sought from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

It is also important to note as a preliminary matter 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 information in question, 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 FOI Act requires a consideration of public interest (not applicable in this case).

Analysis and Findings

Section 15(1)(a)

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. 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 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 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 a review by this Office is not concerned with access to records that a requester believes ought to exist.

The Council’s Submissions

The Council’s position is that no records exist in relation to a copy of the reason why the applicant’s discretionary HAP cap raise of 20% was withdrawn in March 2022. It stated that the full paper housing file was re-examined during the course of this review and that all relevant staff members’ email accounts were searched for records relevant to his request.

The Council stated that all housing records were searched for records relating to the applicant’s request, including hardcopy archived records, folders and files. The Council said that all of the individuals named in the applicant’s request were consulted and their records searched. The Council said that searches were undertaken of electronic records using keywords which included the applicant’s name. The Council also said that the email records of retired staff members were searched for relevant records in this case.

In response to a query concerning email correspondence with a named individual, the Council stated that all such records have been provided to the applicant during this review, including records which had not previously been released to him under FOI. The Council also stated that any records created of phone calls, meetings, or conversations concerning the applicant have been released to him under FOI.

The applicant remains of the view that a letter sent from the Council to him on 3 October 2022 indicates that additional records should exist. The letter concerned a response to a complaint made by the applicant regarding his HAP payment. The correspondence referred to information having been provided by the applicant relating to whether certain members of his family lived with him on a full time basis. The applicant appears to be of the view that the Council made a decision on his HAP payment on a mistaken understanding of his living arrangements. While this is not relevant to this Office’s review, I note that the Council’s position is that a decision on a HAP payment in such a case is solely made on the basis of the percentage of the individual’s income spent on rent.

The Council stated that any comments made in the letter relating to the applicant’s living arrangements were based on records held within his housing file. The Council said that the specific records on which it based its understanding of his family’s living arrangements comprised correspondence from the applicant or third parties on his behalf to the Council on various dates between 17 and 26 November 2021 including documentation provided by the applicant in order to process the addition of family members to his housing application. The Council’s position is that all of these records have been released to the applicant in response to his request and that no additional records exist.

Analysis

Having regard to the submissions provided by the Council, which outline the searches that were undertaken to locate records relating to the applicant’s request and to its explanation for concluding that no further records exist, I am satisfied that the Council has taken all reasonable steps to locate additional records in this case. While I note that the applicant does not accept the Council’s explanation, there is nothing before me to indicate that further searches are warranted in this case.

Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the Act, to additional records relating to the applicant’s request on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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) of the Act, to additional records relating to the applicant’s request on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.
 

____________________

Sandra Murdiff

Investigator