Whether SOLAS was justified in its decision to refuse the applicant’s request for access to certain additional records relating to his SOLAS Safe Pass Tutor Accreditation application other than those already released to him on the ground that no further relevant records exist or can be found

20 June 2019

Background

On 30 October 2018 the applicant submitted an 18 part request to SOLAS for access to records relating to his SOLAS Safe Pass Tutor Accreditation application and subsequent appeal.  On 14 November 2018, SOLAS decided to part-grant the request.  It released ten records to the applicant, redacting certain information relating to third parties from three of the records under section 37(1) of the FOI Act.

On 29 November 2019, the applicant sought an internal review of SOLAS’s decision on the ground that he had not received records relating to eight parts of his request.  On 12 December 2018, SOLAS issued its internal review decision, in which released the terms of reference for the committees that considered both his application and his subsequent appeal. On 10 January 2019, the applicant sought a review by this Office of SOLAS’s decision.

During the course of the review, SOLAS provided this Office with details of the searches it carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed him of her view that SOLAS was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between SOLAS and the applicant as outlined above and to correspondence between this Office and both SOLAS and the applicant on the matter. In referring to records, I have adopted the record numbering system used by SOLAS for the purposes of this review.

Scope of Review

During the course of the review, the applicant confirmed that he did not require this Office to review the decision of SOLAS to redact certain third party information from three of the records released to him. In addition, he argued that he had not received records relating to seven parts of his request.  

It is important to note that our review in this case is of the decisions taken by SOLAS on the original request and application for internal review and does not extend to records that were not originally sought.

Accordingly, the scope of this review is concerned solely with whether SOLAS was justified in refusing the applicant’s request for access to further records coming within the scope of his request for certain records relating to his SOLAS Safe Pass Tutor Accreditation application and subsequent appeal other than those already released on the ground that no further relevant records exist or can be found.

Preliminary Matter

As has previously been explained to the applicant, 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. As such, while it is clear that the applicant is dissatisfied with the decision taken by SOLAS on his Safe Pass Tutor Accreditation application and subsequent appeal, this Office has no role in examining the appropriateness of those decisions. He may, however, wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine his complaint.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if 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 Office 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 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, SOLAS provided details of the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details I do not propose to repeat them in full here. In short, SOLAS outlined that the applicant’s name was used as a search term and that no relevant records had been destroyed. It stated that hard drives holding approval and appeal related material and hard copy application and appeal application files were searched. It also stated that a number of key staff members were consulted and their emails searched, including the secretaries of the approval and appeal committees – one of whom was an individual identified by the applicant. Furthermore, in relation to the criteria used by the committees to reach their decisions, SOLAS noted that such criteria are outlined in the application form that had been released to the applicant (page 34 of record 10).

In his submissions to this Office the applicant argued that more detailed minutes of the approval and appeal committees should exist. According to SOLAS, no specific comments made by members of the committees are recorded on committee minutes. It also stated that the minutes released are the final minutes and that the term "draft" was not removed in error. In response to further queries from this Office, SOLAS outlined that the documents provided to the members of the approval and appeal committees in preparation for the scheduled meetings are not signed off. It explained that it is the minutes of those meetings that are signed off by the independent chairperson at the next appeal/approval meeting. It noted, however, that as a result of an administrative error, the approved minutes for the appeal committee meeting held on 28 August 2018 were not signed off by the independent chairperson and no signed attendance sheet was created. SOLAS stated that this error had no bearing on the decision made in relation to the applicant's application.

The general thrust of the applicant’s argument is that given his view of SOLAS’s application and appeal processes, additional records should exist. According to SOLAS no further relevant records exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice.  

Having considered the details of the searches undertaken by SOLAS and its processes, I am satisfied that SOLAS has carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought in this case. I find, therefore, that SOLAS was justified in refusing access to additional relevant records 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 decision of SOLAS to refuse the applicant’s request for certain additional records relating to his SOLAS Safe Pass Tutor Accreditation application and subsequent appeal under section 15(1)(a) 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.

 

 

Stephen Rafferty
Senior Investigator