Whether the Council was justified in its decision to refuse the applicant’s request for access to additional records relating to four of his properties other than those already released to him on the ground that no further relevant records exist or can be found

16 March 2020

Background

On 5 December 2018, the applicant submitted a request to the Council for access to information relating to four properties owned by him.  He sought access to copies of all complaints and/or submissions that were received and/or recorded by the Council either by phone and/or in writing, including details of relevant related correspondence.  He also sought details of all personnel that accessed and/or handled such records.

On 8 January 2019, the Council decided to part-grant the request.  It identified six planning enforcement case files as relevant to the review and released a number of records to the applicant, withholding certain information under sections 35(1) and 42(m)(i) of the Act which are concerned with the protection of confidential information and sources of such confidential information.

On 5 February 2019, the applicant sought an internal review of that decision, in which he argued that he had not received all relevant records and that the Council was not justified in withholding the identities of parties who made complaints. He also argued that he had not received relevant records from other relevant areas within the Council apart from the Planning Department.

On 11 March 2019, the Council issued its internal review decision, wherein it varied its original decision.  It located and released further relevant records to the applicant, some of which were held on files maintained by sections other than planning enforcement, again withholding certain information under sections 35(1) and 42(m)(i). On 30 August 2019, the applicant sought a review by this Office of the Council’s decision.

In communications with this Office, the applicant indicated that he was not seeking access to the information which had been withheld from the records released to him under sections 35(1) and 42(m)(i) of the FOI Act but rather, was of the view that further relevant records should exist. He made specific reference to the absence of records relating to phone calls that had been made to the Council.

During the course of the review, the Council provided the applicant with a number of additional records that it had failed to include as a result of administrative errors in the batches of records released in response to his original and internal review requests.  It also located and released further relevant records, including records of a number of telephone conversations, withholding certain information under sections 35(1) and 42(m)(i).

In addition, the Council provided this Office with details of its record management practices and of the searches carried out to locate all relevant records.  Ms Swanwick outlined the details of those searches to the applicant and informed him of her view that the Council was justified in refusing access to any additional records on the ground that no further relevant records exist.  She invited the applicant to make a further submission on the matter.

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for access to additional records relating to four of his properties other than those already released to him on the ground that no further relevant records exist or can be found.

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, the Council provided details of its record storage practices and the searches conducted in response to the applicant’s request.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, it described the electronic and physical searches carried out in the relevant sections of the Council.

The Council outlined that the Planning and Enforcement section carried out electronic searches of the planning control database using the relevant address (in full and in part) and file reference number (in full and in part). It noted that hard copy files are stored in a filing cabinet according to property address and that the relevant files were searched.  It stated that one relevant hard copy file could not be located and explained that there is a destruction date of ten years in relation to planning enforcement records.  It stated that the file was over ten years old at the date of the applicant’s request and, while there is no evidence of destruction, it is possible that it has been destroyed.  It went on to note that an electronic copy of the file was reconstructed from the database and provided to the applicant.  The Council also outlined that relevant individuals were consulted and that searches of their filing cabinets and desks were completed.  It noted that the individual responsible for the “closed file” spreadsheet was contacted and she had undertaken a search using the relevant address (in full and in part) and file reference number (in full and in part) as search terms.

The Council noted that hard copy and electronic searches were carried out within the Air Quality Monitoring and Noise Control Unit.  In relation to Building Control records, the Council outlined that a search was carried out in respect of one of the applicant’s properties on the Building Control section of the Council’s shared drive and two identified computer systems.

The Council outlined that the Roads and Traffic Department had advised that the Roadworks Control Unit was consulted.  It stated that a complaint had been made by telephone call, however no record of this complaint or other such complaints is kept.  It noted that all information provided to the applicant in respect of the complaint was based on the inspector’s recollection alone.  It also referred to the Road Maintenance Service section which holds hard copy records within its area of the Council and electronic records on one database and two identified computer systems. It stated that searches were carried out for records that related to complaints at the location concerned. 

The general thrust of the applicant’s arguments is that, in light of his interactions with the Council, additional records relating to complaints against his properties should exist.  According to the Council 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. 

The piecemeal manner in which the Council released records in this case is unfortunate and clearly gave good cause for the applicant to have concerns as to the completeness of the information released.  However, having considered the Council’s description of the searches undertaken, I am now satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request.  I find, therefore that the Council was justified in refusing access to any additional records on the ground that no further relevant 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 the applicant’s request for further records relating to four of his properties 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