Whether the IPS was justified in its decision to refuse the applicant’s request for records relating to prisoners updating social media accounts whilst in custody and related policy documents under section 15(1)(a) of the FOI Act
17 May 2019
On 26 July 2018, the applicant submitted a three part request to the IPS for access to:
1. “the number of instances where prisoners were found to be actively updating social media accounts whilst in custody in each of the following years: 2016, 2017, 2018
2. a breakdown of the above figures according to prison, and if possible, according to which social medium was being used
3. copies of any policy documents relating to how such activity is managed”
As the IPS failed to issue a decision on the request within the statutory time-frame the applicant sought an internal review of the deemed refusal of its request on 8 October 2019. As the IPS also failed to issue an internal review decision within the required time-frame, the applicant sought a review by this Office of the refusal of the request.
Following correspondence with this Office, the IPS issued its effective position to the applicant on 18 January 2019, in which it refused the request under section 15(1)(a) of the Act on the ground that no relevant records exist. On 19 January 2019, the applicant informed this Office that it wished the review to proceed.
During the course of the review, Ms Swanwick of this Office provided the applicant with details of the explanation provided by the IPS as to why no relevant records exist. She informed the applicant of her view that the IPS was justified in refusing the request under section 15(1)(a) of the FOI Act. In response, the applicant indicated that it required a binding decision on the matter.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the IPS and the applicant as outlined above and to correspondence between this Office and both the IPS and the applicant on the matter.
Scope of Review
This review is concerned solely with whether the IPS was justified in its decision to refuse the applicant’s request for records relating to prisoners updating social media accounts whilst in custody and related policy documents under section 15(1)(a) of the FOI Act
Before I address the substantive issues arising in this case, I wish to make the following comments concerning the right of access provided for under the FOI Act.
As the applicant is aware, 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, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
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.
Section 17(4) provides for the processing of electronic data in order to meet FOI requests. Specifically, it provides that where the request relates to data contained in a number of electronically held records, the FOI body must take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the body.
In its submissions to this Office, the IPS explained why it decided that no relevant records exist. Ms Swanwick of this Office has already provided the applicant with those details. The following is a summary of that explanation:
Parts 1 and 2
In essence, the position of the IPS is that it does not collate the number of instances where prisoners were found to be actively updating social media accounts whilst in custody and as such, it holds no records that contain the information sought. It explained that information regarding documented instances where prisoners were found to be updating social media over the relevant time period would be held across a number of different reports. It stated that in order to provide the statistics requested 1404 weekly reports and 39,000 individual contraband reports would need to be examined.
Having considered the submission of the IPS, I am satisfied that the applicant's request was for specific information which is not contained in any record held by the IPS and that to collate the information sought would require the creation of a new record which the IPS is not required to do. I am also satisfied that the IPS cannot simply extract electronically held information in order to grant the request by the taking of reasonable steps.
I find, therefore, that the IPS was justified in refusing parts 1 and 2 of the applicant’s request under section 15(1)(a) on the ground that no relevant records containing the information sought exist.
The position of the IPS in relation to the applicant's request for copies of any policy documents relating to how it manages situations where prisoners are found to be actively updating social media accounts whilst in custody is that no such policy documents exist as it is generally forbidden for a prisoner to be in possession of a mobile phone or other social media device. The IPS added that while the use of mobile phones is permitted in two facilities, the phones must be purchased from an approved supplier and the phone offers no internet, camera, or sound recording facility.
Having considered the IPS’s explanation of the rules and procedures surrounding the use of mobile phones, I find that the IPS was justified in refusing part 3 of the applicant’s request under section 15(1)(a) on the ground that the records sought do not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IPS to refuse the applicant's request for records relating to prisoners updating social media accounts whilst in custody and related policy documents under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.
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.