Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for all information that caused the Council to believe that a named company was part of his group of companies on the ground that no relevant records could be found

14 June 2021

Background

In 2010, the Council issued a decision on an FOI request wherein it provided details of three companies it believed to be part of a group of companies owned by the applicant that carried out work on behalf the Council. In a letter dated 21 July 2020, the applicant submitted a request to the Council for all information that caused the Council to believe that one of the companies named in that letter was part of his group of companies. He said he had never owned or controlled any interests in the company in question

On 1 September 2020, the Council refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. On 9 September 2020, the applicant sought an internal review of that decision. He argued that certain financial records would inform the issue that was the subject of his request. On 25 September 2020, the Council affirmed its original decision under section 15(1)(a) of the FOI Act. On 24 March 2021, the applicant sought a review by this Office of the Council’s 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 various submissions made by the applicant and by the Council and to correspondence between the Council and the applicant, and with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act on the ground that the records do not exist or cannot be found.

Preliminary Matters

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 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.

In correspondence from the applicant, he has raised a wide range of issues going back many years. 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.

Analysis and Findings

The Council interpreted the applicant’s request as a request for records that led the decision maker in the 2010 FOI request to believe that the named company was part of the applicant’s group of companies. I am satisfied that this was a reasonable interpretation of the request. The Council refused the request under section 15(a)(a of the Act. That section provides that an FOI body may refuse to grant a request where 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 means that the Commissioner 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 and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can 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.

During the course of this review, the Council provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.

The Council explained that it retrieved the physical file associated with the 2010 FOI request from off-site storage. Due to the age of the file, it was not held electronically. The file was examined and was found to contain only one record connected to the current FOI request which was an email from the Infrastructure Department to the decision maker listing three company names for the applicant which included the named company. However, there was no detail given as to why the Infrastructure Department believed this to be the case. The file also contained four lists of contracts with these companies, split by different departments within Meath County Council, but with no detail of the origin of these lists or the original search criteria used.

The decision maker on the 2010 FOI request was contacted by the decision maker on the current request, and also by the person handling the internal review. The original decision maker confirmed on both occasions that he could not recall any additional records that would be relevant to the request.

The Council expanded its search to other FOI requests made by the applicant. On examining a 2011 FOI request on a similar issue, it was noted that the named company was originally registered under a different name using the same initials as one of the applicant’s companies and that it was also registered at the same address as the applicant’s company at the time. The Council said it could not be certain but suggested that this may have been the reason that the Infrastructure Department, and subsequently the FOI decision maker in 2010, believed that the named company was part of the applicant’s group of companies.

The Council noted that in another more recent FOI request made by the applicant (FOI 138/20), 224 pages of emails and invoices were released to him on 14 January 2021. It suggested that some of these documents may demonstrate why the Council more broadly ‘believed’ that the named company was part of the applicant’s group of companies.

As stated earlier, requests for information or for answers to questions are not valid requests under the FOI Act, except to the extent that they can be reasonably interpreted as a request for records that contain the information or the answers to particular questions. In this case, the applicant has essentially asked a question: why did the Council believe in 2010 that the named company was part of his group of companies?

It is the Council’s position that no records exist that contain the answer to the question asked by the applicant. It has pointed to some potential reasons as to why that conclusion may have been reached; however, with the passage of time and the limited records available to back up the 2010 FOI decision, it could not be sure. It is the applicant’s position that the Council withheld information from him, but he has provided no evidence to support that contention.

Having considered the details of the searches undertaken and the Council’s explanation as to why no records exist or can be found, I am satisfied that the Council has carried out all reasonable steps in an effort to find the records. I find, therefore, that the Council was justified in refusing the request under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse the applicant’s request, under section 15(1)(a) of the Act, for records coming within the scope of his request on the ground 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.

 

Stephen Rafferty

Senior Investigator