Case number: OIC-131942-B8N8T2
12 January 2023
All references to the applicant in this case can be taken to relating to the applicant or her representative, as appropriate.
On 2 November 2021 the applicant made a request to the Council for copies of all reports, letters, notes, memoranda, and/or other documentation held by the Council relating to her. On 16 December 2021, the Council part-granted her request. It refused access to some records in full or in part on the basis of section 37 of the FOI Act. The applicant requested an internal review of the Council’s decision on 11 January 2022. On 8 April 2022 the Council affirmed its original decision and refused access to additional records under section 15(1)(a) of the FOI Act.
On 1 November 2022 the applicant applied to this Office for a review. During the course of this review the Council provided submissions to this Office, including details of the searches it had undertaken and information about the existence of additional records it holds which it considers to be outside the scope of the applicant’s request.
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 applicant’s submissions and to the submissions made by, and correspondence with, the Council on the matter. I have also had regard to the contents of the records located by the Council. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request, on the grounds that they do not exist or cannot be found.
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 his/her 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 Council stated that it had received correspondence from the applicant which referred to housing in the subject line. As a result, it appears that the Council proceeded on the basis that the applicant was solely seeking records relating to housing. Essentially, the Council’s view was that there was nothing to indicate that the applicant was seeking records from any other department. Accordingly, searches for relevant records concerning the applicant were only carried out in the Council’s housing department. It said that it consulted the relevant individuals in housing and that their records were searched for all records relating to the applicant.
The Council provided details of the searches undertaken to locate records in this case. It also provided copies of its relevant records retention policies and stated that no records relating to the applicant’s request had been destroyed. The Council further stated that both hard copy and electronic files were searched in this case. It said that it had searched its iHouse electronic storage system and that the physical hard copy tenancy files stored next to the applicant’s tenancy file were checked in case documents had been misfiled. The Council also said that file storage areas were searched for any further records relating to the applicant, but that no additional records were located. It further stated that although searches were carried out with its off-site storage provider, no files relating to the applicant’s request had been sent to storage.
In her internal review request, the applicant indicated that she believed that additional records should exist relating to her request. She stated that she made her first housing application to the Council in 2006. She also queried whether the Council held any records containing information provided by third parties about her. In its internal review decision, the Council acknowledged that the applicant had contacted it in 2006 and referred to one record held on its iHouse storage system which related to her 2006 housing application.
I note that this record was provided to the applicant as part of the records released by the Council in this case, subject to the redaction of a third party name. The Council’s housing department stated that keyword searches were undertaken to locate relevant records, such as the applicant’s name, her housing reference number and her address, but that no additional records relating to the applicant’s 2006 housing application were found.
Essentially, the Council’s position appeared to be that no additional records had been located relating to the applicant’s dealings with the Council from 2006 to 2017, or after 2017, other than those already identified. However, in its submissions to this Office, the Council stated that, due to a boundary change in the Cork County and City local authority administrative areas, certain files for County social housing applicants were transferred to the City Council. It stated that all applicants were advised of this “where relevant”. However, it did not elaborate as to whether the applicant’s files in this case had been transferred. Furthermore, in its submissions to this Office, the Council acknowledged that it holds additional records relating to the applicant and a number of third parties. However, these records were not identified in its decisions or provided to the applicant, as the Council deemed them to be outside the scope of her request. The Council confirmed to this Office that these additional records were held on the applicant’s housing file. It also confirmed that when a search for records was performed using the applicant’s name, these records were located.
This Office takes the view that the FOI does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Nonetheless, section 15(1)(a) requires an FOI body to take all reasonable steps to locate relevant records. Having regard to the Council’s submissions, I am not satisfied that reasonable searches were undertaken to locate all records relevant to the applicant’s request in this case. The Council made the decision to assign the applicant’s request for records to the housing department alone. It did not consider whether additional records relating to the applicant’s request existed in other areas within the Council. While I accept that the correspondence from the applicant may have been misleading, insofar as the subject line of the cover email may have appeared to limit the scope of her request, it remains unclear what steps the Council took to engage with the applicant in order to clarify what records she sought.
At this stage, I think it is worth noting the obligations of both the requester and public bodies under the FOI Act in cases such as this. While section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps, section 11(2) of the FOI Act also requires public bodies to give reasonable assistance to requesters in relation to the making of requests.
I also note that the Council has not provided an adequate explanation for the absence of records relating to the applicant’s housing application from 2006. Essentially, the Council’s position regarding these records appears to be that, while it acknowledges that an application was made in 2006, it now holds no records relating to that application apart from one record generated in 2014. However, it remains unclear whether its position is that records relating to this time period existed at one point and were destroyed in line with a records management policy; that the records never existed or that the records existed but cannot be found. Additionally, the Council has not clarified whether the applicant was within the group of housing applicants whose files were transferred to the City Council. If the Council is aware that records transferred, or may have transferred, to the City Council, I would have expected it to inform the applicant of this (section 12(3) of the FOI Act refers).
As I have outlined above, the Council has acknowledged that additional records exist in this case, which it deemed to be outside the scope of the applicant’s request. Having carefully examined the content of the records, I am satisfied that the additional records identified fall within the scope of the applicant’s request for records relating to her. However, as the records also appear to contain the personal information of identifiable third parties and/or joint personal information relating to the applicant and others, I do not consider it appropriate to simply direct their release. In the circumstances of this case, it also appears to me that records relating to the applicant’s request may be held by other departments within the Council which have not yet been searched, such as the County Manager’s office.
Based on the above, I find that the Council was not justified in refusing access to additional records on the basis of section 15(1)(a) as it has not demonstrated that it has taken all reasonable steps to ascertain the whereabouts of all relevant records in this case. In the circumstances, I consider that the most appropriate course of action to take is to annul the Council’s decision, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision. In processing the applicant’s request, I would expect the Council to engage with her in the first instance before the request is considered afresh with a view to coming to an agreement on the precise nature of the records sought. I would also expect the Council to inform the applicant if it is of the view that another FOI body such as the City Council holds records relating to her request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified in refusing access to additional records relating to the applicant’s request on the basis of section 15(1)(a) of the FOI Act. I direct the Council to undertake a fresh decision-making process in respect of the applicant’s request.
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.