Whether the Council was justified in refusing access to additional records relating to the applicant-�s tenancy file under Section 15(1)(a) of the FOI Act

18 July 2023

Background

On 19 December 2022, the applicant made a request for all documents and records held by the Council concerning her personal tenancy files from 2003 to date. In particular, the applicant stated that she sought records relating to her tenancy from October 2020; records of phone calls, emails and representations from Councillors on her behalf; records relating to her visit/meeting at the Council Office; records relating to an appeal concerning anti-social behaviour in September 2021; and security records relating to the applicant-�s home from March 2021 to present.

On the same date, the Council sent an acknowledgment letter to the applicant regarding her request. On 26 January 2023, the applicant made an internal review request on the ground that she had received no decision from the Council. On 20 February 2023, the applicant applied to this Office for a review as the Council had not responded to her internal review request (Case OIC-135622-M5L6H6 refers). On 21 February 2023, the Council issued its internal review decision granting the access to the records sought. This Office-�s file in Case OIC-135622-M5L6H6 was then closed.

On 9 March 2023, the applicant applied to this Office for a review of the Council-�s internal review decision as she was of the view that additional relevant records should be on her file which had not been released to her (Case OIC-136372-F6T7B3 refers). 

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 applicant and to the submissions made by the Council in support of its decision. I have also examined the records located to date. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

I understand that during the course of this review the applicant provided copies of additional records to the Council which she considered should have been on her tenancy file. I am satisfied that none of these records were held by the Council at the date of the applicant-�s request, and accordingly, are not within the scope of this review.

The applicant maintains that additional records relevant to her request should exist.

Accordingly, this review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, to release additional records relating to the applicant-�s request, on the basis that they do not exist or cannot be found.

Preliminary Matters                                                                        

I should state at the outset that the Council-�s processing of the applicant-�s request and it interactions with this Office have been quite unsatisfactory. I note that the Investigating Officer had to go back to the Council on a number of occasions in order to clarify matters before the case could proceed.

There also appeared to be some confusion on the Council-�s part as to this Office-�s role in the matter, which is to review the Council-�s decision on the applicant-�s request. To be clear, in the circumstances of this case, it is not appropriate that this Office makes a first instance decision on the additional records located by the Council during this review.

As the Council should be aware, there is a significant amount of guidance and support material available to FOI bodies to assist them in meeting their statutory obligations under the Act. This Office publishes comprehensive guidance notes and sample questions to assist FOI bodies in their decision-making on our websitewww.oic.ie. All of the decisions issued in respect of our reviews are also published. The Central Policy Unit of the Department of Public Expenditure and Reform also publishes guidance documents, training manuals, and a Code of Practice. In addition to the referenced FOI training above, I strongly urge the Council to ensure that its decision makers avail of the readily available FOI support resources.

Analysis and Findings

Section 15(1)(a)

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. The Commissioner's 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 her application to this Office, the applicant referred to a number of categories of records which had not been released to her by the Council including the following:

• her 2021 transfer application
• records relating to anti-social behaviour and criminal damage to her property
• records relating to security details on the applicant-�s home in 2021,
• records of an appeal regarding anti-social behaviour in September 2021,
• medical letters she sent to the Council,
• letters from friends and neighbours regarding other residents,
• records relating to a fire at the applicant-�s home,
• records of the Council replacing windows and doors at the property,
• representations from a named individual from March 2021 to June 2022,
• records of telephone calls, emails and meetings with specified individuals on certain dates.

The Investigating Officer asked the Council to provide submissions on the steps taken to locate the records sought, including the specific categories listed by the applicant in her application to this Office.

Submissions by the Council

In its submissions to this Office, the Council stated that the applicant-�s request had been dealt with by its Housing section. It said that it was aware of representations made by specified individuals on the applicant-�s behalf, but that these had been made verbally and weren-�t recorded. It also said that the Housing department -�don-�t have [the] time-� to record such conversations to files. The Council further stated that during the course of this review, it informed the applicant that it does not record telephone calls for data protection and confidentiality reasons. It also said that the Housing section would not have copies of any WhatsApp messages relating to the applicant-�s request. The Council suggested that the applicant contact the individuals who made representations on her behalf, who would be -�likely to provide them to her themselves-�. It also stated that it held no further security files, other than those already released.

During the course of this review, the Council carried out additional searches for relevant electronic records on foot of queries from this Office. The Council subsequently informed this Office that it had located additional records within the scope of the applicant-�s request. On 20 April 2023, the Council informed this Office that it had located emails on the applicant-�s Housing File, which had not been released to her. It also located a copy of the applicant-�s transfer file, which it said was not included in its original response. I understand that it provided a copy of these records to the applicant on 26 May 2023.

The Council subsequently informed this Office that it had located further records, including video footage, which appeared to come within the scope of the applicant-�s request. However, the Council considered section 37 of the FOI Act to apply to the additional records located in full or in part, as they contained the personal information of third parties other than the applicant.

Analysis

This Office takes the view that the FOI Act 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, it seems to me that comprehensive searches were not carried out in this case until the applicant applied for a review to this Office.

However, as noted above, the Council located additional records which it is not willing to release in full. Based upon correspondence between this Office and the Council, I am satisfied that the additional records identified fall within the scope of the applicant-�s request. 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 direct release. Nor is it appropriate for this Office to carry out a first-instance decision making process on these records.

In the circumstances, I simply cannot find that the Council had undertaken all reasonable steps to locate relevant records when processing the applicant-�s FOI request. As such, I find that the Council was not justified in refusing to grant access to further relevant records under section 15(1)(a) of the FOI Act. However, I do not consider it appropriate to simply direct the release in full of the records that have since been located, in circumstances where the Council argues that those records or parts of those records are exempt from release, and where the exemptions cited serve to protect third party interests.

On the other hand, it is not appropriatethat this Office should be a first instance decision maker to determine what information, if any, qualifies for exemption. Instead, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of the Council to refuse the request under section 15(1)(a) of the Act. The effect of this is it 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 he is not satisfied with the Council-�s decision.

I note that a lot of the categories of records specified by the applicant as missing appear to be contained in the Transfer file, which was released during this review. However, 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 remaining 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council-�s decision to refuse access, under section 15(1)(a), to additional records relevant to the applicant-�s request. I direct the Council to consider the request afresh.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the four-week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act.

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