Case number: OIC-124469-N4W4R0

Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant, other than those already released, on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

 

26 September 2022

 

Background

In a request dated 26 March 2022, the applicant sought access to all information relating to her held by the Council’s housing department and all correspondences relating to her sent by email to and from the housing department, to include two emails sent to the housing department on her behalf by a healthcare professional containing sensitive medical information pertaining to her. The first email was sent on 24 August 2020 and the second on 22 March 2022.

In a decision dated 27 April 2022, the Council refused the applicant’s request on the ground that she had already received the information on foot of a data access request under the Data Protection Act 2018. The applicant sought an internal review of that decision, arguing that the information she received was incomplete. On 20 May 2022, the Council refused the request under section 15(1)(i)(i) of the Act on the ground that the applicant’s full file had already been released to her. On 3 June 2022, the applicant applied to this Office for a review of the Council’s decision, on the ground that she had received an incomplete file, with multiple missing emails.

At the outset of the review, the applicant identified six email records which she believed were missing from the file issued to her by the Council. Following further searches for those records, five of the six email records identified by the applicant were located and released to her by the Council. However, the Council said it had no record of an email sent by the applicant’s healthcare professional on her behalf on 24 August 2020 [the sixth email record]. The Investigating Officer subsequently provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that the email of 24 August 2022 does not exist or cannot be found. The applicant was invited to make a further submission on the matter, which she duly did.

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 correspondence between the applicant and the Council as outlined above, and to communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant considers that a further relevant record should exist. The Council’s position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to a further relevant record under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Council was justified in its decision to refuse access, under section 15(1)(a) of the Act, to additional relevant records coming within the scope of the applicant’s request.

Preliminary Matters                                                                        

Before considering the substantive issues arising, I wish to make a number of preliminary points. First, in her correspondence with this Office, the applicant expressed concerns about the Council’s handling of her FOI request. While I have noted the applicant’s concerns, it is important to note that this review has been conducted under section 22(2) of the Act, which is concerned solely with a review of the decision actually taken on her request.

Secondly, 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 generally 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 (not relevant in this case).

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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 the 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.

As I have outlined above, the Council undertook further searches during the review in an effort to locate six emails which the applicant contended were missing from her file, following which five of the six email records were located and released to her, but no email sent by the applicant’s healthcare professional on her behalf on 24 August 2020 (the sixth email record) could be found. As the applicant has already been provided with details of the Council’s submissions, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In short, the Council explained it uses the Mailmeter email management and compliance platform, which enables the Council to find every email in all of its email accounts. It said the email archiving solution allows it to narrow the scope of a search using clearly defined criteria. The Council said its Mailmeter system is currently configured so that all emails sent to and from a ‘meathcoco’ account are retrievable, regardless of whether they have been deleted or not. It said there are no time limitations on the destruction and removal of emails from the Mailmeter platform.

The Council said it was satisfied given its extensive searches that the email of 24 August 2020 was never received and is not held by the Council. It said there is an email on the applicant’s file sent by a member of staff of the Council to the applicant dated 5 April 2022, wherein he refers to an email sent by the applicant’s healthcare professional in August 2020. However, the Council clarified that this was an error and that the staff member was actually referring to the email sent by the healthcare professional on 22 March 2022. It said while this may be the source of some confusion and misunderstanding, the email of 5 April 2022 is incorrect. The Council said the email of 22 March 2022 from the applicant’s healthcare professional was accompanied by a letter dated 20 March 2022, but that there was no reference in this letter to any previous correspondence having been sent to the Council.

The Council explained that when dealing with the applicant’s FOI request, it was simultaneously processing a subject access request from the applicant for the same records. It said that when issuing the FOI decision, the decision maker erroneously missed the decision due date on the FOI request by one day. The Council apologised for this delay but said it was a genuine mistake and a mix up between regarding due dates between both applications.

Following receipt of the details of the Council’s submissions, the applicant said in response that when she informed the Council that she was missing multiple emails correspondences as part of her file, no effort was made to ascertain what was missing. She stated her belief that the Council had received the email from August 2020, that they did not process that email correctly and that it may have been deleted. The applicant contended the Council did not address the error in the staff member’s email of 5 April 2022 with her directly. She said the email sent by her healthcare professional on 22 March 2022 did reference previous contact to the Council. She also said she did not accept the Council’s explanation for the late issuance of its decision.

Following a request by this Office for clarification on a number of related matters, the Council provided details of two further searches it carried out in an effort to locate the email of 24 August 2020. It explained that the email dated 22 March 2022 did, indeed, reference previous contact that the applicant referred to, but that no evidence was provided of the actual email address the missing email may have been sent to. The Council said it therefore carried out a search of all mailboxes, but no further email from the psychologist was found.

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. Rather, the question I must consider in this case is whether the Council has, at this stage, taken all reasonable steps to ascertain the whereabouts of the relevant record. Having regard to the details of the Council’s submission and to its explanation as to why it considers that the record cannot be found, I am satisfied that it has. While the applicant does not accept the Council’s explanation in the matter, I have no reason to doubt the Council’s submission that all emails sent to and from a ‘meathcoco’ account are retrievable and that all mailboxes have been searched.

Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further relevant records, other than those already located and released, on the ground 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 decision of the Council to refuse access, under section 15(1)(a) of the Act, to any further records other than those already located and released on the basis that no further relevant 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.
 

Stephen Rafferty
Senior Investigator