Whether the Council was justified in refusing to grant access to additional records concerning the applicant's housing under section 15(1)(a) of the FOI Act
13 August 2019
The applicant in this case sought a review by this Office of decisions taken by the Council on three separate requests she made on 21 September 2018 concerning her tenancy. As the parties to each review are identical and there is a degree of overlap between the requests, I have considered the three applications together.
The applicant sought (i) details of the factors that led to her transfer in 1998 to her current address, (ii) all records relating to her tenancy under the Council from January 1994 to the date of her request, and (iii) all records relating to her tenancy at her current address from March 1998.
The Council treated the first request as a request for records. On 19 October 2018 it issued a joint decision on the first two requests wherein it part-granted the request. In its decision of the same date on the third request, it informed the applicant that it had already released the relevant records.
The applicant sought an internal review of the Council's decisions jointly, stating that she wished to obtain access to her entire file. Following internal review the Council issued a decision on the first request wherein it stated that no records relating to the reasons for the applicant’s transfer could be found. It refused the request under section 15(1)(a) of the FOI Act. On 6 December 2018 it released a number of additional records, in whole or in part, in respect of the second request and restated its position that all records captured by the third request had already been released to her.
On 20 February 2019, the applicant sought a review by this Office of the Council’s decision to refuse access to all of her records on the basis that no records could be found. She specifically stated that the request was for all records and information relating to the reasons which led to her transfer to her current address.
During the course of the review, submissions were received from both parties. I note that Mr Flood, Investigator, wrote to the applicant on 27 May 2019, setting out his view as to the scope of the review, as below, and providing her with details of a focused submission received from the Council in support of its decision(s). The Investigator informed the applicant of his view that the Council was justified in refusing access to additional records under section 15(1)(a). He also invited the applicant to make any further comments she wished on the matter and offered her an opportunity to withdraw her applications if she wished.
No further response has been received from the applicant. Accordingly, I have decided to conclude the review by issuing a formal, binding decision covering all three applications for review. In conducting the reviews I have had regard to the provisions of the Act and to the communications between the applicant and the Council, above, as well as those between this Office and both parties on the matter.
Scope of Review
During the course of the review, the applicant stated that she was seeking records dating from 1993 onwards. However, based on the wording of her requests, I am satisfied that the relevant period encompasses 1 January 1994 until the date of the requests, 21 September 2018.
Accordingly, this review is concerned solely with the question of whether the Council was justified in refusing access, under section 15(1)(a), to any further relevant records relating to the reasons for her transfer from her current address, on the ground that no records apart from those already released exist or can be found.
Analysis and Findings
The applicant's requests related to her residency in two different locations and her transfer arising from matters concerning anti-social behaviour.
The applicant argued that additional relevant records should have been identified and released to her pursuant to her requests. The Council’s position is that all relevant records that could be identified following the taking of all reasonable steps to locate them have, at this point, been released to the applicant, either in full or with third party information redacted.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises 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.
During the course of the review, the Council made a focused submission to this Office in support of its position. As mentioned, details of the Council's arguments have been provided to the applicant already. Therefore, I do not propose to repeat those details in full.
In short, the Council outlined the searches it conducted, both of hardcopy and electronic records, across a range of relevant Council areas, and its referral of the request to relevant Council employees, including senior staff in relevant Sections. The Council submitted that it had confirmed that no material is stored in the Council archives in relation to anti-social behaviour cases. It also noted that the applicant's file with the Council commenced only in 1997, with the transfer of housing stock from Dublin Corporation (now Dublin City Council) to the Council.
Undoubtedly the applicant will be disappointed that no records of note can be found relating to the reasons behind her transfer, particularly given that the transfer took place after the transfer of housing stock from Dublin City Council.
While it is very unfortunate that the records cannot be found and while I can fully understand the applicant’s frustration and disappointment, the role of this Office is confined to determining whether the Council has carried out all reasonable steps to locate the records. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.
Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.
In the circumstances of this case, it seems to me that, in processing the requests, the Council has given appropriate consideration to the relevant locations and persons relevant to the requests. Having considered the matter carefully, I am satisfied that the Council has taken all reasonable steps to locate records of relevance to the applicant's requests.
Accordingly, I find that the Council was justified in refusing access to additional relevant records under section 15(1)(a) on the ground that no further relevant records can be found.
As a final remark, I would suggest that, if the applicant has not already done so, she may wish to submit a fresh request to Dublin City Council for relevant records, having regard to the possibility that it may have retained certain records that related to the period preceding the housing stock transfer in 1997, as outlined by the Council in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to additional relevant records under section 15(1)(a), on the ground that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
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.