Case number: OIC-140732-B9R8J1

Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to works / maintenance at an area where the applicant suffered a fall and to records relating to the applicant’s accident or any other accidents at the location on the basis that it cannot locate any such records

 

29 November 2023

 

Background

In a request dated 9 March 2023 the applicant, through her solicitors, sought records in relation to the area where she had a fall on 15 December 2021. (For the sake of convenience, references to the applicant in this decision should be taken to include her solicitor) In particular, the applicant requested records in relation to the following:

1. The steep sloped gradient part of the public footpath at the exit from the public car park at the named location;

2. Records in relation to the design and/or construction of the exit;

3. Records in relation to the repair, upkeep, maintenance, renewal, reinstatement, improvement, resurfacing, cleaning, etc. of the exit;

4. Records in relation to the relatively recent (last 10-20 years) excavation works of the surface of the footpath to erect a pole and traffic sign and any subsequent resurfacing works of the footpath;

5. Records in relation to works by any independent contractors or third parties at the exit;

6. Any CCTV or other records of the applicant’s accident or any other accidents by another pedestrian at the exit;

7. Statements or other records of any witness of the applicant’s accident or any other accidents by another pedestrian at the exit;

8. Accident report form (if any) drafted by Council staff of the applicant’s accident or any other accidents by another pedestrian at the exit.

In a decision dated 27 March 2023 the Council refused the applicant’s request, under section 15(1)(a) of the FOI Act, on the basis that the records requested do not exist. The Council said that the only works completed at the location was the installation of a steel railing (installed between the years 2010/2011) on the edge of the roadway outside the car park and the changing of the sign (installed between 2011/2014). The Council noted that the existing pole was re-used to erect the new sign. On 31 March 2023, the applicant requested an internal review of the Council’s decision. In a decision dated 27 April 2023 the Council affirmed its original decision. It said that it had consulted with its engineering and administrative staff who carried out the search for relevant records as well as previous engineering staff and no records were located. On 20 July 2023, the applicant applied to this Office for a review of the Council’s decision.

On 23 October 2023, this Office’s Investigating Officer wrote to the applicant with details of the searches undertaken by the Council and of its explanation as to why it holds no relevant records and invited the applicant to make further submissions. No response was received by this Office.

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 referred to above, including the application to this Office and the submissions made by the Council in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, to grant access to the records sought in the applicant’s FOI request on the basis that they do not exist or cannot be located.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, it is important to note that while the purpose of the FOI 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. 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 FOI 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.

It is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Finally, in her application to this Office, the applicant set out the background of her request and explained why she sought the records. On this point, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Analysis and Findings

Section 15(1)(a) of the 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. In this case, 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 that no relevant records exist. 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.

As I have outlined above, the Council provided this Office with details of the searches it said it undertook in an effort to locate the records sought by the applicant and its reasons for concluding that no relevant records exist or can be found. The Investigating Officer provided the applicant with details of the Council’s submissions in this regard. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submissions to this Office, the Council said that no records exist in relation to the gradient at this location or the design/construction of the exit. The Council said it carried out of comprehensive searches of its physical and electronic records. Those searches included a search of shared drives, individual folders, e-mails and hardcopy files within the roads section. It said it also established that there were no physical hardcopy files located off site in relation to this FOI request. The Council said it consulted with staff who had responsibility for works carried out in the area concerned, including the Senior Roads Engineer, former Senior Executive Engineers and the General Services Supervisor. The Council said it has no CCTV focused on the specific location. It said a search of the daily worksheets in relation to the repair, upkeep, maintenance of the area has revealed no records. It also said that no records exist in relation to work by independent contractors or third parties.

The Council stated that the only known works completed in the area was the installation of the steel railing (installed between the years 2010/2011) on the edge of the roadway outside the car park and the changing of the sign on the pole (installed between the years 2011/2014). It noted that that the existing pole was re-used to erect the new sign. Thus, it said, the status quo has remained for more than circa 30 years. The Council also said there are no witness statements to the applicant’s accident or any other accident at the exit and there is no Accident Report Form, completed by staff the Council, of the applicant’s accident or any other accident at the exit. The Council said any records of construction in the area and the relevant traffic pole are 30 years old and no longer exist. The Council stated that records may have existed but that records older than 10 years are considered for destruction under its record retention policy. In regards to any report of the accident, the Council stated that it did not receive any reports of said accident and that the first time it became aware of the accident was on receipt of a submission dated 7 September 2022 from the applicant’s solicitor regarding a public liability claim.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.

Having regard to the information before this Office, and in the absence of any substantive argument or evidence to the contrary, it seems to me that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records can be found. In the circumstances, I find that the Council was justified in refusing access to records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access, under section 15(1)(a) of the FOI Act, to records relating to the applicant’s request on the basis that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

 

Richard Crowley
Investigator