Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for all records for a specified period relating to her housing application on the ground that the records sought could not be found after all reasonable steps to ascertain their whereabouts were taken

1 November 2021

 

Background

On 12 October 2020, the applicant submitted, through her representatives, a request to the Council for a copy of all records relating to the housing of the applicant and her family for the period 9 August 2016 to the date of the request. Any references to correspondence with the applicant in this decision includes correspondence with her representatives.

On 26 November 2020, the Council informed the applicant that after an extensive search, her file could not be found. On 19 April 2021, it issued its decision, in which it refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought could not be found. The applicant sought an internal review of that decision, and included a copy of a notification to the applicant dated 20 July 2017 in relation to her housing from the Council. The Council affirmed its refusal of the request. On 30 June 2021, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, the applicant submitted that there had been numerous correspondences with the Council in connection with her search for suitable housing, and she had provided copies of documents that would have been on the file to the Council as proof that records exist. The Investigating Officer sought submissions from the Council on searches undertaken to locate the relevant records and these submissions were provided to the applicant with an invitation for her to provide a further submission of her own. The applicant did not provide a response. A small number of electronic records were located on foot of queries made by the Investigating Officer in this review, and it is my understanding that these were released to the applicant in the course of this review.

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 the applicant and the Council as set out above and to the correspondence between this Office and both parties on the matter. 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, under section 15(1)(a) of the FOI Act, the applicant’s request for a copy of all records, from 9 August 2016 to the date of her request, relating to her housing application, apart from those located and released during the course of the review.

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 role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. We 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.

As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate relevant records. It said that it has approximately 4,000 hard copy individual applications on hand at any one time in approximately 420 box files stored on 10 sets of shelving in a storage area within the Council Housing Section. It said that all the paperwork relevant to each applicant is held together within a file cover, that each application is allocated a number from the Council’s Housing IT system, IHouse, and that files are filed within each box file in numerical order.

The Council added that all applications go through an assessment process, whereby the application and supporting documentation is checked by office staff. It said that if an applicant is deemed eligible for social housing, the individual’s file is retained within the applications storage area until such time as the applicant is being considered for the allocation of a social house. It said that the individual’s file is then retrieved from this storage to enable the preparatory process for allocation to be completed. The Council said that when this process has been completed and an application nominated, as in this instance, to an Approved Housing Body, the individual’s file is moved to the storage area for closed files, where it is stored in a box file. It said that each box file contains approximately 6 individual files. It said that the movement of the individual’s file to the closed storage area is recorded on a spreadsheet on the Housing IT drive and that the applicant is deemed to be adequately housed in a social house and is no longer an applicant or a tenant of the Council at that stage.

The Council added that in this case, this is a closed application and was part of a group of applicants that were housed in Voluntary Housing Association (VHA). It said that because the applicant was a tenant of the VHA, generally there would be no further action needed or correspondence with the applicant, therefore the file would be closed. It said that, in these circumstances, the files would be stored in boxes in its filing rooms internally. It said that the box in which the applicant’s file was contained is missing.

On the nature of the searches undertaken, the Council said that extensive searches were carried out within both areas where closed and open applications are stored in the Housing Section. It said the majority of relevant documentation is stored in hard copy only, as it currently has no scanning system or online application process for Social Housing Applications. It said all staff in the Housing Section were contacted via email, requesting that they search the area immediately surrounding their own vicinity, including their own desks, in an effort to locate the file. It said that approximately 6 staff members were involved in a more extensive search through both the closed and current housing application files and in the general office area of the Housing Section.

The Council said it does not currently hold housing applications/housing tenancy files offsite. It said that there is a plan in place to commence scanning, via a contractor, of hard copy files, which will then be sent to storage. It added that the applicant’s file could not have ended up in a different section of the Council. It said housing applicant files are not dealt with in any other office

of the Council, and there is no situation where it would be necessary for a file to be referred to or dealt with in a different section. It said that copies of the file might be forwarded to another section of the Council, but there is no way to check if another section of the Council had requested copies of records at any stage. It stated that everything would end up on the Housing file regardless of the origin of the record.

In relation to electronic records, the Council said it generally corresponds with housing applicants via hard copy letter, which is sent via ordinary post. It said there is a limited amount of correspondence with housing applicants via e-mail and that correspondence is accepted via e-mail at [email protected]. It said that letters are created and issued via the online housing database – IHouse, and that the letter, once requested via the database, enters a print queue, is printed and no electronic copy remains. The Council said that a minimal amount of documentation regarding housing applications is scanned and stored on the Council’s Sharepoint in Office 365 and that documentation is usually printed and placed on file.

The records located by the Council in this case were electronic records relating to the applicant’s housing applications, including the application about which the Council contacted her by letter dated 20 July 2017, a copy of which the applicant provided in her application for internal review. It would appear that the primary issue in this case is that the Council cannot find the box in which the applicant’s hard-copy records would have been held.

While this is very unfortunate, it is important to note that the test in section 15(1)(a) is whether all reasonable steps have been taken to locate relevant records. It is possible - and it is clearly envisaged by the Act - that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. The FOI Act does not require absolute certainty as to the existence or location of records, as situations may arise where records are lost or simply cannot be found. There are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

While it is very disappointing that the Council cannot find the box of records, it seems to me that, taking into account the details of the Council’s relevant records management practices and of the searches actually undertaken in this case, it has taken all reasonable steps in an effort to ascertain the whereabouts of the relevant records. Accordingly, I find that section 15(1)(a) of the FOI Act applies on the ground that no further relevant records can be found. I would add that, should the Council locate the applicant’s file at any stage following this review, it should arrange for the immediate release of the records to the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for a copy of all records relating her housing application for a specified period, other than those located and released during the course of the review.

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