Case number: 170303

Whether the Council was justified in deciding to refuse access to further records relating to footpath works in a named area under section 15(1)(a) on the ground that they do not exist or cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Council on 2 February 2017 for records relating to footpath engineering works carried out on a named street over the course of five years, in particular records relating to raised footpath works on that street.

As the Council did not issue a decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request on 22 March 2017. Yet again, the Council failed to issue a decision following internal review within the statutory time-frame. Instead, it wrote to the applicant on 7 June 2017 and informed him that he was entitled to apply to this Office for a review of the deemed refusal of his request. It also stated that as the nature of the request related to a potential liability claim, it would have to seek the advice of its insurers on what information is appropriate for release. On 7 June 2017, the applicant sought a review by this Office of the Council's refusal of his request.

During the course of the review, the Council initially claimed that no records of works carried out outside the applicant's property exist, and as such, no records were withheld. Subsequently, it confirmed that footpath works were carried out at least 150 metres away from the applicant's property and that it had no records regarding raised footpath works in the vicinity of his property. It provided this Offie with a copy of spreadsheet entries which it described as being in respect of works undertaken in the relevant area.

Following further correspondence with this Office, the Council provided the applicant with a copy of the spreadsheet with the redaction of personal information relating to staff members and a diary entry containing details of a meeting between the applicant and a Council official. The Council also provided this Office with information regarding the applicable record management policy relating to works carried out and the searches conducted to locate further relevant records. Ms McCrory of this Office provided the applicant with details of those searches on 9 November 2017. She also informed the applicant of her view that the Council was justified in deciding that the further records sought did not exist or could not be found. The applicant was invited to make a further submission but has not done so. Therefore I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse the applicant’s request for further records relating to footpath works in a named area under section 15(1)(a) on the ground that these records do not exist or cannot be found.

Preliminay Matter

The Council's processing of the applicant's request was most unsatisfactory in this case. Not only did it fail to issue a timely decision at both stages of the decision making process, it also sought to justify its failure to issue a timely decision on the ground that it had to seek the advice of its insurers as to what information would be appropriate for release. While it is entirely a matter for the Council to decide if it wishes to consult with its insurers when processing a request, this cannot be to the detriment of its ability to issue a decision within the statutory time-frame. Furthermore, any decision to refuse access to records must be based on the provisions of the FOI Act and any reasons that a requester has for making the request must generally be disregarded.  I expect the Council to be fully aware of its statutory obligations, particularly as it has been subject to the provisions of FOI legislation for almost twenty years.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases 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 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 decision maker concluded that the steps taken to search for records were reasonable.

In a submission to this Office, the Council provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details. In essence, the Council stated that enquiries were made with the relevant officials who act as supervisors of such footpath projects and with a Council engineer. It stated that the engineer in charge of the relevant works found no record of work in his diary for the relevant area.

The Council added that it conducted searches on its Customer Content Management System (CCMS) and that no relevant records were located. The spreadsheet released, comprising details of all works in the relevant area including the street for which records were sought, was taken from the Council's accounting system. It stated that it is aware of all work carried out in the relevant area and that none related to the street in question or footpaths on that street.

While the applicant is clearly dissatisfied with the level of information held, and while it is somewhat surprising to me that the Council does not have a more formal process of recording details of works carried out, no evidence has been made available to this Office to suggest that further relevant records ought to exist. I should add that even if further records ought to exist, the remit of this Office is confined to determining whether the Council has carried out all reasonable steps to ascertain the whereabouts of such records.
 
Therefore, having regard to the details of the searches conducted by the Council as outlined above, I am satisfied that it has taken all reasonable steps at this stage to locate the records sought by the applicant. I find, therefore, that the Council was justified in its decision to refuse the applicant's request for access to further relevant records on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council in this case.

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