Case number: OIC-53439-X6W9G3

Whether the Department was justified in its decision to refuse a request under sections 15(1)(a), 15(1)(d) and 37(1) of the FOI Act, for access to records concerning a general felling licence

 

20 August 2019

 

Background

 
On 22 February 2019, the applicant requested access to records held by the Department relating to a general felling licence (GFL) at a particular site.  On 28 February 2019, the Department granted access to certain records identified in its schedule and refused access to others under section 31(1)(a) (legal professional privilege) and section 37(1) (Personal information) of the FOI Act. Following a request for an internal review, the Department varied its decision. It said that additional records (emails) had been found. The Department granted access to further records and refused access in full and in part to the remaining records on the basis of section 15(1)(d) (information already in the public domain) and section 37(1) of the Act. On 23 April 2019, this Office accepted an application for review from the applicant.
 
During the review the Department granted access to information it had previously withheld in record 11. It confirmed that the matter of ‘legal services’ was not pursued by the Department and that it was no longer relying on section 31(1)(a). 
 
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 submissions received from the Department. I have also had regard to the contents of records relevant to this review.  I have decided to conclude this review by way of a formal, binding decision.
 
 

Scope of Review

 
In her application for review, the applicant queried whether further records existed. She contended that further records ought to have been created and held and that pages/records appeared to be missing from some records already released. The applicant and the Department were advised that section 15(1)(a) was relevant and were invited to make submissions on the matter. A further submission was not received from the applicant. 
 
This review is concerned solely with whether the Department was justified in deciding to refuse access, in full and in part, to records on the basis of sections 15(1)(a), 15(1)(d) and 37(1) of the FOI Act.
 
 

Preliminary Matters

 
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 be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking the records 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 applicant raised a concern about a potential conflict of interest in relation to the Department’s decision making process. It is not unusual for FOI decision makers to be involved in decisions concerning records in their own area of responsibility within a public body and indeed, it is often helpful that such an officer is familiar with the records management etc. involved.  I note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of the review decision. I stress that the findings which follow are confined to the applicant's right to access records under the FOI Act and do not extend to other matters related to dissatisfaction  the applicant may have in her dealings with the Department over which the Commissioner does not have jurisdiction.
 
In her application for review the applicant posed questions about the records and the licencing process that gave rise to them.  As the investigator explained to the applicant, the FOI Act provides for a right of access to records held by FOI bodies and that requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist. The 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 the information sought. In addition, this Office has no role in examining how public bodies perform their functions generally.
 

Analysis and Findings

Section 15 - Refusal on administrative grounds
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 
 
The role of the Commissioner 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 
 
Adequacy of search 
 
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 FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.
 
In her application to this Office the applicant queried whether all records relevant to her request were made available to her. In particular, she queried whether any records were held by the Department or its inspectors that relate to site reports, reply emails, other information related to inspectors and minutes of meetings. The applicant also queried whether all photographs had been released to her.
 
The Department said there is only one file for GFL and that it is kept in its offices at Johnstown Castle. It stated that it conducted searches on inspectorate and administrative staff emails and also searched under terms relating to the applicant and the specific GFL number. According to the Department, records received electronically were added to the file. It said that email responses were not issued to all emails sent and that “no formal minuted meetings were held”.  The Department said that the field notes of an inspector were consolidated into one sheet which was released to the applicant along with the original three sheets. It also said that the applicant is already in receipt of photographs taken. In response to the investigator’s queries, the Department accepted that records 30 and 31 are duplicates of records 24 and 25 and that record 28 is a duplicate of record 27. It said that it released records 27 and 29 in the course of the review as these are drafts of final versions of records already given to the applicant. 
 
It seems to me that in relation to many of the applicant’s complaints and queries about what she views as inadequacies in the documents, the Department’s position is that additional records were either not created or not retained. The applicant has already been informed by this Office that, as regards some of her requests for explanations, section 10 of the FOI Act might be appropriate if what she is seeking is a statement of reasons for acts or decisions affecting her. However, there is no review application before me arising from a section 10 request and I am restricted to dealing with the right of access to records held. 
The applicant queried whether further records may be held in the Department’s ‘Legal Services’ section. The Department stated that the email sent to its legal services on 6 February 2019 was not pursued and that there were no attachments to the email.  It also stated that a draft letter referred to in an email of 30 January 2019 was never finalised and was never sent on to its legal services.
 
In light of the above, I do not consider that I would be justified under section 15(1)(a) in requiring the Department to take further search steps on the basis of the applicant's belief that further records ought to be held.

The position of the Department is that it has taken all reasonable steps to look for records of relevance to the applicant's request. In view of the information provided by it relating to the search undertaken, I consider that the Department has taken all reasonable steps to ascertain the whereabouts of any further records within the scope of the request. 

I find, therefore, that section 15(1)(a) of the FOI Act applies. 

Section 15(1)(d) - Information in the public domain

Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain.
 
It is not clear whether the applicant is seeking a review by this Office of that part of the decision which refused access to record 26. However, for the sake of clarity I will consider the exemption here.
 
Having examined the record, it seems that the information contained in it is sourced from a number of publicly accessible media and other outlets. I find that the Department is justified in withholding access to the record under section 15(1)(d) of the FOI Act. However, in making this finding, I direct the Department to provide sufficient details to the applicant about the information in the record, to allow her to identify and access the information if she wishes e.g. links to webpages or other details of information published about the treefelling. 
 
Section 37 - Personal information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.
 
Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. However, while I am constrained by those provisions in describing the information in the records in detail, I can say that they are mostly the personal contact details of third parties. 
 
Having examined the records, I am satisfied that the withheld information is the personal information of individuals other than the applicant, Accordingly, I find the remaining withheld information in the records to be exempt under section 37(1) of the FOI Act.

I find that section 37(2) does not apply to the details at issue. 

Section 37(5)(a) - The Public Interest

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
 
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. 

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. 

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. 

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties who are mentioned in the records. The public interest has been served to a large extent by the release of other records in full or in part to the applicant. 

I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.
 

Decision

 
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department.
 
I affirm its decision to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. 
 
I affirm the decision of the Department to refuse access to one record on the basis of section 15(1)(d) of the FOI Act but direct it to identify for the applicant where she might access the media reports held.  
 
I affirm the Department’s decision to refuse access to the withheld information in the records under section 37 of the FOI Act. I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.
 
 

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.
 
 
 
 
Elizabeth Dolan
Senior Investigator