Whether Caranua was justified in deciding to refuse access to further records relating to the applicant under section 15(1)(a) on the ground that no further relevant records exist or can be found
4 October 2017
The applicant submitted a request to Caranua on 20 February 2017 for all records relating to her interactions with Caranua. On 28 February 2017, Caranua informed the applicant that it had decided to grant her request. The applicant sought an internal review of that decision on the ground that a number of records were not released. On 11 May 2017, Caranua affirmed its original decision on the grounds that no further records could be found. On 6 June 2017, the applicant sought a review by this Office of Caranua’s decision.
During the course of this review, Caranua located and released one additional record following further searches. It also provided this Office with information regarding the applicable record management policy and the searches conducted to locate all relevant records. Ms McCrory of this Office provided the applicant with details of those searches by email on 09 August 2017. She also informed the applicant of her view that Caranua was justified in deciding that no further relevant records exist or could be found. The applicant was invited to make a further submission but has not done so. I therefore 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 Caranua and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and Caranua on the matter.
Scope of Review
This review is concerned solely with whether Caranua was justified in its decision to refuse the applicant’s request for further records relating to her interactions with Caranua under section 15(1)(a) on the ground that no further relevant records exist or can be found.
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 summary, Caranua informed this Office that, in line with procedures contained in its Staff Handbook, it keeps minimal hard copy records. It uses an electronic CRM system, Salesforce, to manage all records related to an individual’s application to Caranua and its staff record any interactions between a staff member and an applicant on its CRM system. It stated that any written correspondence sent or received would be uploaded in PDF format to an applicant’s electronic file, and that all emails, records of phone calls, meetings, correspondence and any activity relating to an individual application are contained on its CRM system.
Caranua further stated that on foot of the applicant’s contentions that further records should exist, it asked its IT Department to conduct a search in Caranua's email archive, using the applicant's email address, her full name, and her first and second name separately. It stated that there were three application advisors identified by Caranua that had been in contact with the applicant, and that the searches were focused on their particular email accounts in the archive but no further records were found. It stated that a supplementary search was carried out for hard copy records and that a small file containing 40 records was found, 39 of which had previously been released. However, the file contained one record that had not been uploaded to the CRM system and this was subsequently released. It stated that the record in question may not have been logged on the CRM system as there was no identifying information on it.
In essence, it is now Caranua's position that no further relevant records can be found after all reasonable steps have been taken to ascertain their whereabouts. Section 15(1)(a) does not require absolute certainty as to the existence or location of records as, unfortunately, situations occasionally arise where records are lost, destroyed, or simply cannot be found. What the section requires 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. Furthermore, while the applicant is of the view that further records should exist, she has presented no evidence to support that view.
In the circumstances, having regard to the details of the searches conducted by Caranua as outlined above, I am satisfied that it has taken all reasonable steps to locate all relevant records sought by the applicant. I find, therefore, that Caranua 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.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of Caranua 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.