Case number: OIC-104221-X1S6G3

Whether the Council was justified in refusing access to records relating to a complaint made to it on the basis of section 15(1)(a) of the FOI Act

 

OIC-104221-X1S6G3

 

Background

 

On 24 February 2020, the applicant made an FOI request to the Council for access to records relating to a complaint made by his late wife to the Council. The applicant outlined 34 categories of records that included letters, minutes of meetings, memos and recordings or notes of telephone conversations.  On 31 July 2020, the Council issued its decision. The Council apologised for the delay in processing the request, which it said was due to the closure of its office because of the Covid-19 crisis. The Council part granted the applicant’s request. It released 21 records and it refused access to certain records in full or in part, on the basis of section 37 of the FOI Act (personal information). The Council also refused access to certain categories of records sought by the applicant on the basis of section 15(1)(a) of the FOI Act, i.e. the records do not exist or could not be found after all reasonable searches.

On 20 August 2020, the applicant sought an internal review of the Council’s decision.  In its internal review decision dated 9 September 2020, the Council varied the initial decision, releasing further records including some records that had previously been withheld under section 37 of the Act. The Council also refused access to certain categories of records sought by the applicant on the basis of section 15(1)(a) of the Act.

On 2 October 2020, the applicant wrote to the Council and requested clarifications in relation to the internal review decision. The applicant also requested further records. On 3 December 2020, the Council informed the applicant that while his FOI request had already been determined, in order to facilitate him it had considered his request, which in some instances was a request for new records. The Council said having done so, it had located further records. It furnished the applicant with nine further records in response to his varied request.

On 24 February 2021, the applicant applied to this Office for a review of the Council’s decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Council, to correspondence between the applicant and this Office, to correspondence between the Council and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

 

Scope of Review

 

It is important to note that the jurisdiction of this Office is based on the wording of the original FOI request and internal review request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request or to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed. I cannot consider records that were the subject of the Council’s subsequent decision of 3 December 2020, if these records did not form part of the applicant’s original request.

During the course of the review, the applicant confirmed to this Office that he is only seeking a review of the Council’s decision to rely on section 15(1)(a) of the Act. He is not seeking a review of its decision to refuse access to certain records under section 37 of the Act. Accordingly, the scope of this review is confined to whether or not the Council was justified in refusing access to additional records falling within the scope of the applicant’s original request on the basis of section 15(1)(a) of the FOI Act.

 

Preliminary matters

The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.

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.

It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the applicant 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 Act requires a consideration of the public interest. The Act does not require a consideration of the public interest in section 15(1)(a) cases.

 

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” 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.

 

Submissions of the Parties

The applicant contends that it is not credible for the Council to say that no recordings or notes of certain conversations with the assigned case officer exist. He says that according to the Council, all members of the Professional Practice Committee (PPC) were sent a copy of a named Doctor’s expert report. He contends that it is not credible that no records of transmission of the expert report exist. The applicant also says he believes there ought to be records containing notes or comments made by each PPC member who examined the expert report.

During the review process, this Office’s investigator requested the Council respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries in relation to its record-management practices. The Council’s response to these queries was provided to the applicant and is set out in summary here.

The Council says ideally there should be notes of all phone conversations with parties to a complaint. However, it says that despite a careful review of its digital and hard copy files no relevant audio or notes of the conversations which the applicant refers to could be identified. The Council says it previously used a software system called pTools for sending expert reports to PPC members. It says it no longer uses pTools and the server hosting the pTools software has been expunged. It says there are no digital records available of the exact date the expert report at issue was provided to the PPC members. The Council says that standard procedures require that the minutes of PPC meetings are the only records preserved on the conclusion of a PPC meeting and notes made by individual PPC members during PPC meetings are not preserved.

The Council states that following the applicant’s FOI request, the FOI Officer received the full complaint file from the Professional Standards team. It states that a second wider system search was conducted to check that no documents had been overlooked. It states that in addition, on an exceptional basis, a detailed 'tech search' was conducted in relation to the applicant’s FOI request using certain email address, names and time frames. The Council states that after receiving the applicant’s internal review request, all documents relevant to the FOI request were re-examined and considered afresh and this resulted in additional records being identified and released to the applicant. The Council states that the FOI Officer who originally dealt with the applicant’s initial request is no longer working within the Council and it is normal Council policy that employees who leave its employment destroy any personal hard copy notes or records on their departure.

The Council states that its current FOI Officer recently conducted a re-review of the relevant electronic and hard copy files, including a search of the Council's off-site storage facility, and spoke to six existing Council employees who previously dealt with the complaint. It says it located an additional handwritten note and an email, which it says fall outside the scope of the request but which were released to the applicant for completeness.

Following receipt of the additional search details, the applicant provided a further submission to this Office. The applicant contended that it is most unusual for the Council not to have a backup of their digital records prior to closing their contract with pTools. He states that the main body of the case report for the PPC meeting held on 12 January 2016 appears to be missing. Finally, he questions whether the Council’s policy to destroy any personal hard copy notes relating to employees who leave its employment is appropriate and in compliance with its policy stipulating the destruction of such records.

Following a request for clarification from this Office, the Council says it only used pTools to transfer records, not to store records. It states all records are stored on its secure internal databases and it does not retain records detailing proof of transfer. The Council states that the main body of the case report for the PPC meeting held on 12 January 2016 is not missing as suggested by the applicant. It states that case reports serve as a type of outline document and do not include a summary of the complaint or an analysis of the evidence gathered. Finally, the Council states that all of its employees are required to file and save any records created in the course of their work. It states that at times, staff may make what it terms personal notes, such as ‘to-do’ lists, personal follow-ups after meetings, reminders etc. It states that if staff make such hardcopy personal notes during the course of their work, these notes are securely shredded at their discretion throughout their employment, and upon their departure, but that all digital files created in the course of their work are passed to their line manager or another team member.

 

Analysis and Findings

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

I understand the applicant’s position that further records ought to exist, and the points that he has raised in support of this position. It is my view that the Council provided reasonable responses in this regard. The Council followed up the specific points raised by the applicant with the relevant parties internally and provided answers to specific questions during this Office’s investigation, all of which were provided to the applicant.

Taking into account the search details provided by the Council, its responses to the applicant's points, and to this Office's queries, I am satisfied that the Council has taken all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. Accordingly, I find that section 15(1)(a) of the FOI Act applies on the ground that no further relevant records exist or can be found after reasonable searches were conducted.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Council's decision, I find that 15(1)(a) of the FOI Act applies to the applicant’s FOI request.

 

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.

 

 

Deirdre McGoldrick

Senior Investigator