Whether the Council was justified, under section 15(1)(a) in refusing access to records of injury awards sought by the applicant

27  February 2023

Background

In a request dated 17 January 2022, the applicant sought access to records relating to the number of awards made by the Council to its injured employees under section 109 of S.I. No. 455/1998 - Local Government (Superannuation) (Consolidation) Scheme, 1998 (the Superannuation Scheme) from 1998 to the present day.

In a decision dated 7 February 2022, the Council stated that his request was invalid, as the applicant sought information rather than access to records. On 10 May 2022, the applicant requested an internal review. On 30 May 2022, the Council again refused his request, on the basis of section 15(1)(a) of the FOI Act. In its internal review decision, the Council confirmed, outside of the FOI Act, that no compensation claims were paid during the period specified by the applicant. On 2 November 2022, the applicant applied to this Office for a review of the Council-�s decision.

During the course of this review, the Investigating Officer provided the applicant with details of the Council-�s submissions in relation to the steps undertaken to locate the records sought and its reasons for concluding that no records exist. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did. He remains of the view that records should exist relating to his 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 submissions made by the Council in support of its decision and to the applicant-�s submissions and communication with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

The applicant considers that further records should exist. The Council-�s position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Council was justified in refusing to grant access to records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, on the basis that they do not exist or cannot be located, after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

I note that in this case, the applicant submitted his request in the form of a question to the Council (-�Can you tell me how many awards has the Council made [-�] under section 109 [-�] to their injured employees since 1998 to the present-�).  It is important to note that, in general, requests for information or for answers to questions, as opposed to requests for records, are not valid 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.

I also note that during the course of this review, the applicant raised concerns in relation to the Council providing some background information to this Office relating to him and his previous dealings with the Council concerning certain matters. My understanding is that the Council provided this information solely in the context of providing reasons for its decision to refuse his request and in order to address matters raised by the applicant in correspondence with this Office. In any event, it is important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined to reviewing the Council-�s decision on the applicant-�s FOI request.

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.

As I have outlined above, the Council provided this Office with details of its reasons for concluding that no relevant records exist or can be found. The Council said that applications for injury awards under the Superannuation Scheme are processed by the Department of Housing, Local Government and Heritage (the Department), not by the Council. The Council also said that it contacted the Department on foot of the applicant-�s request, which stated that it made no awards under section 109 of the Superannuation Scheme during the period specified.

The Investigating Officer provided the applicant with an outline of the Council-�s submissions as to why it did not hold relevant records. In response, the applicant made submissions to this Office relating to claims submitted by him to the Council under section 109 of the Superannuation Scheme, including copies of related correspondence with the Council.

On the matter of whether the Council holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record(s) sought.

I have reviewed the Council-�s explanation as to why it concluded that no records relating to the applicant-�s request exist, as well as to the applicant-�s submissions in response. The applicant-�s view that records relating to awards under the relevant legislation should exist appears to be wholly based on his knowledge of his own claim to the Council. However, I note that his request sought information relating to the number ofawardsmade under the relevant scheme and I understand that his claim has not resulted in an award. Furthermore, I have no reason not to accept the Council-�s submission that all such awards would be made by the Department, not the Council and that no such awards have been made in the relevant time period.

In the circumstances, I am satisfied that the Council has adequately explained why it came to the conclusion that no records relating to the applicant-�s request exist. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for records on the ground that no relevant records exist.

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.
 

Sandra Murdiff
Investigator