Whether the Council was justified in its decision to refuse the applicant’s request for access to additional records relating to her Affordable Housing Scheme application other than those already released to her on the ground that no further relevant records exist or can be found
12 August 2019
On 9 May 2018 the applicant made a request to the Council for all information held by it in relation to her Affordable Housing Scheme application.
On 15 June 2018 the Council decided to grant the request and released three records. On 19 July 2018 the applicant sought an internal review of that decision. She indicated that the records released did not contain sufficient information to explain why her application was unsuccessful. The Council issued its internal review decision on 17 August 2018 in which it granted access to 32 records having located archived material, and including the three records that were originally released. It also provided the applicant with copies of two information booklets for the Affordable Housing Scheme outside of the FOI process. On 11 January 2019, the applicant sought a review by this Office of the Council’s decision.
During the course of the review, the Council provided details of the searches undertaken to locate all relevant records coming within the scope of the applicant’s request. On 5 April 2019 Ms Swanwick of this Office provided the applicant with details of those searches. Following further communications between this Office and both the applicant and the Council on the matter, the Council located and made available additional records relating to the applicant and it provided additional details in relation to the searches conducted in an effort to locate all relevant records.
Furthermore, in relation to the 2005 information booklet which the Council had released to the applicant outside of the FOI process and which does not fall within the scope of this review, the Council stated that it could not locate a second copy to send to the applicant.
I have decided to bring this review to a close by way of a formal binding decision. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the contents of the records released to the applicant.
Scope of Review
This review is concerned solely with whether the Council was justified in refusing access to further relevant records relating to the applicant’s Affordable Housing Scheme application apart from those already released on the ground that no further relevant records exist or can be found.
Before I address the substantive issue arising, I would like to make a number of preliminary comments.
Firstly, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Secondly, it is apparent from the applicant's communications with this Office that she has specific concerns about the manner in which the Council dealt with her Affordable Housing Scheme application. As Ms Swanwick has previously explained to the applicant, this Office has no role in examining the administrative actions of the Council or its staff in the performance of their functions. Our role is confined to considering whether the Council's decision on her FOI request was in accordance with the FOI Act. If the applicant has concerns about the manner in which the Council dealt with her Affordable Housing Scheme application, she may wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine her complaint.
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 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.
In its submissions to this Office, the Council provided details of the searches conducted to locate the records sought. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council identified the various locations that were searched. It stated that a physical inspection was carried out of all files held in the filing cabinet containing affordable housing files and in all other filing cabinets located on the same floor of the Council building. It also stated that an electronic search of the housing network drive was carried out, using the applicant’s reference number, name, and address as search terms and that electronic searches of the affordable housing email account and the email accounts of relevant individual staff members were also carried out, using the sent/received and to/from functions in relation to the applicant’s name.
In her response to the search details provided, the applicant outlined her view that, given her interactions with the Council, further records ought to exist, including records pertaining to her position(s) on the Council’s housing lists. The applicant noted that she had never emailed correspondence to the Council and that most of the information requested should be contained on the housing network drive. She queried whether the electronic search of the drive was undertaken using her current address (the address used by the Council was a prior address), PPS number, and date of birth as search terms.
Following receipt of the applicant’s submissions, Ms Swanwick of this Office sought further details from the Council in relation to the Affordable Housing Scheme process and the searches undertaken. In response, the Council explained two housing lists were in operation, a General List and a County List. However, in 2007/2008 one third of units acquired in any electoral area were allocated to applicants who had lived in that electoral area for a period of five continuous years. It stated that the applicant’s name (expanded from the full correct spelling to different spell options as well as the sole Christian/surname options) and the applicant’s reference number were the primary search term options and considered likely to adduce the greatest search success.
The Council also outlined that an additional search of the housing network drive had been carried out and a folder containing a defunct database pertaining to the Affordable Housing Scheme was located. It confirmed that following an examination the database by IT personnel, a number of records were identified and made available to the applicant.
The applicant appears to have considerable difference of opinion with regard to many aspects of the Council’s interactions with her in relation to her affordable housing application. However, I would once again emphasise that the function of this Office is limited to reviewing the decision of the Council in relation to the applicant’s FOI request and determining if it was justified under the provisions of the FOI Act. As set out above and in recent correspondence with the applicant, this Office has no remit to investigate the manner in which the Council dealt with her Affordable Housing Scheme application.
Having considered the details of the searches undertaken and the record storage practices within the Council, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Council was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the applicant’s request for further records relating to her Affordable Housing Scheme application under section 15(1)(a) of the FOI Act.
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.