Decision
Mr X and Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-161154-L0V7S3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161154-L0V7S3
Published on
Whether the Housing Agency was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records sought by the applicant relating to the Defective Concrete Blocks Scheme on the grounds that no further records exist or can be found
3 December 2025
In a request dated 19 May 2025, the applicant sought access to all records between 19 December 2022 to 14 July 2024 relating to a specific application to the Defective Concrete Blocks Scheme, including all internal and external communications and all records reviewed by the Housing Agency and its appointed officer when considering the Application for Remediation Option Grant and making the determination on 13 July 2024.
On 18 June 2025, the Housing Agency part-granted the applicant’s request. The Agency released 11 records in full and partially released 17 records. It refused certain information contained in the records it redacted under section 37(1) of the FOI Act on the ground that it is third-party personal information. On 25 June 2025, the applicant requested an internal review of the Council’s decision on the basis that he considers further records ought to exist. The applicant said he is aware that all other homeowners in the DCB Downgraded group had received draft reports completed by framework consultant engineers. The applicant said that the downgrade report on his home indicates that a least one draft report (dated 7 June 2024) existed but was not included in the records released to him.
On 15 July 2025, the Housing Agency affirmed its original decision and said it could not locate the draft reports referred to by the applicant. The Agency relied on section 15(1)(a) of the FOI Act for refusing access to further records on the grounds that further records do not exist or cannot be found.
On 2 August 2025, the applicant applied to this Office for a review of the Housing Agency’s decision. The applicant said that the draft report does exist as it is explicitly referenced in a final report which was released to him in the Agency’s original decision.
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 outlined above, to the applicant’s comments made in his application for review and to the submissions made by the Housing Agency in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Housing Agency was justified, under section 15(1)(a) of the FOI Act, in its decision to refuse to release the draft report sought by the applicant on the grounds that it does not exist or cannot be found after all reasonable steps have been carried out to ascertain its whereabouts.
Section 15(1)(a) of the FOI 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 their 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.
In its submissions to this Office, the Housing Agency stated that under its Records Management Policy, draft documents are considered working papers and are maintained solely for the purpose of developing and finalising official records. Once a finalised version of a document has been completed and formally approved, the Agency said that any draft versions are scheduled for destruction in accordance with the Agency’s retention and disposal procedures. The Agency provided a copy of its Records Management Policy to this Office for the purpose of this review.
The Housing Agency stated that, under the Records Management Policy, each business unit is required to develop and maintain an inventory of the class of records contained within the business function. It said that draft versions of records that have been replaced by final versions of the record should not be maintained and may be disposed of.
The Housing Agency stated that the Records Management Policy was brought to the attention of staff working within the Defective Concrete Blocks Grant Scheme (DCBGS) unit in September 2024 following the introduction of the policy to the wider organisation. The Agency said the timeframe for removal of a draft record varies across the DCBGS unit’s service delivery, but in general the process for removal is carried out once an application or project group in which a draft report is contained within, is competed in full.
In its submissions, the Housing Agency provided details of the searches it carried out on foot of the applicant’s request. It stated that it searched its Microsoft SharePoint and Microsoft Outlook systems relating to the applicant’s referenced applications. It said keyword searches were carried out using the relevant terms and filters (e.g., applicant name, application reference number, and key dates).
The Investigating Officer asked if all relevant individuals were consulted in the searches, including the framework consultant engineers specified by the applicant. The Housing Agency responded by saying that the consultant engineers were contacted and were asked to search for any relevant correspondence. It stated that the engineers searched for relevant correspondence. The Housing Agency said that all relevant correspondence in this request has been provided.
However, the Housing Agency stated that the search it asked the engineers to carry out should have been for all records as requested, not just for correspondence. In its submissions to this Office, the Housing Agency said that, during the course of this review, it corresponded with the engineers, and its agents confirmed that a draft report exits within their file structures. The Housing Agency said it has requested this draft report from its agents and will review the record in line with the FOI Act. The Agency said it will ensure that all requests of its agents will seek all records, rather than all correspondence in future when searching for records under an FOI request.
In light of the Housing Agency’s submissions that the draft report sought by the applicant has been located during the course of this review, I cannot find that the Agency has taken all reasonable steps to locate all of the records sought by the applicant in his request. As such, I find the Housing Agency was not justified in its decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act.
In the circumstances, I consider the most appropriate course of action is to annul the Housing Agency’s decision to refuse access to the draft report sought by the applicant under section 15(1)(a) of the Act. I direct the Agency to make a fresh on access to the draft report it located during the course of this review. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with Housing Agency’s fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Housing Agency’s decision and direct it to undertake a fresh decision on access to the draft report it located in accordance with the provisions of the FOI Act.
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.
Richard Crowley
Investigator