Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant-�s housing application other than those already released on the ground that no further relevant records exist or can be found

16 September 2022

Background

In a request dated 28 April 2022, the applicant sought access to all records regarding her housing applications from 2009 to 2022, including records relating to TDs that have spoken on her behalf and solicitors-� letters. In a decision dated 23 May 2022, the Council granted access to what it described as eight records, one of which comprised a copy of the applicant-�s housing file containing 91 pages. It refused access to certain records under section 15(1)(a) of the FOI act on the ground that no other relevant records exist. On 26 May 2022, the applicant sought an internal review of the Council-�s decision. She said there were many solicitor-�s letters missing and many representations on her behalf from 2009.

In its Internal Review decision of 16 June 2022, the Council affirmed the original decision. It referred to its retention policy which provides that where an applicant is deemed unsuccessful/not qualified, submitted documents are retained for one year after housing needs assessment has been completed and then destroyed. On 28 June 2022, the applicant applied to this Office for a review of the Council-�s decision. In her application for review, she said she and various legal representatives had submitted documentation to the Council relating to difficulties in removing her name from a mortgage on a house that she no longer lives in.

During the course of the review, the Council located two additional records and released them to the applicant. The Investigating Officer provided the applicant with details of the Council-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reason for concluding that no additional records exist. The Investigating Officer invited the applicant to make further submissions on the matter, which she duly did.

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 correspondence between the applicant and the HSE as outlined 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 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 further 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 Department was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant-�s request other than those already released.

Preliminary Matter

During the course of the review, the applicant expressed concerns about how the Council has handled her applications for housing. 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 decision taken 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. 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.

As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. The Council said record 1, comprising the applicant-�s housing file, was created following her 2017 housing application, which includes various correspondence from different solicitors with respect to the legal matters referenced by the applicant. It said this file was following a search, using the applicant-�s name, of physical of 19 Filing Cabinets as well as 17 boxes of files in the process of preparation and final review for destruction. It said the details of the file in question was also recorded on iHouse -� the Council-�s Housing Management database system, which records housing application details, names, address, dates etc. but does not store copies of housing documentation.

The Council said a search was also carried out of Iron Mountain Connect system, which is a database used to record details of all files stored in off -site storage facility, and that no records were found. It said no physical search of the off-site storage facility took place as files going to storage are recorded on the database. It said it is not possible to place a file in Off-site storage without first placing an Order on the system.

The Council added that a search of the Housing V Drive where Housing electronic records are maintained was carried out using the applicant-�s name, date of birth, and PPSN with no time line applied and records 7 and 8 were the only records found not already contained within Housing File. It said record 7, comprising a letter dated 5th June 2012, indicated that the applicant was ineligible for social housing support and that a file may have existed in 2012 but that all records of ineligible applications are destroyed after a period of 1 year in accordance with the National Retention Policy for Local Authority Records Housing -� May 2019. It said no such record or file of her 2012 application currently exists within the Council.

The Council said record 8, comprising a letter dated 1st December 2009, would indicate that an application was made in 2009. It said invalid or incomplete applications are returned to the applicant in their entirety and that no such application can be retrieved. It added that even if a file was created or did exist, the fact that it was incomplete from 2009 would have resulted in the application file being destroyed in accordance with national retention policy.

The Council further explained that elected representatives submit representations to the Council on behalf of constituents through the Sugar CRM system. It said the Sugar CRM system was thoroughly searched for all representations recorded on behalf of the applicant up to the date of her FOI request and that only records 2 to 6 were located. It added that it noted on the Sugar CRM system that a telephone conversation took place with the office of a local councillor and the Housing Officer but that no notes of the actual conversation were noted on the record. It said the Housing Officer was consulted and he confirmed that he has no record of the telephone conversation. It added that prior to Sugar CRM (circa 2013) representations made on housing applicants were placed on individual files. It said that as no other physical file can be found for the applicant, it does not hold any other representations apart from what has been released. It added that representations made on behalf of an individual who has no housing application are scanned and filed on the Housing Network along with responses. It said that following electronic searches of the entire Housing Administration Network folder using the applicant-�s name, no further correspondence could be found.

In relation to the two records located and released during the review, the Council said a search of all email accounts was carried out by its IT Department using the applicant-�s name and that the two records, comprising correspondence from a solicitor dated 28 June 2017 and 14 September 2017, were found. It said the records were submitted prior to the applicant submitting her application for Social Housing Support on 18 December 2017 and therefore prior to the opening of her file which was released as record 1.

Following receipt of the details of the Council-�s submissions, the applicant noted that the Council did not conduct physical searches of its off-site facility. She suggested that any information she exchanged with the Council in 2009 was pre-digital era and therefore physical records might not have been registered within the Iron Mountain database. She also again argued that further relevant records should exist, notwithstanding the Council-�s explanation of its records management practices and of the searches undertaken.

On the matter of off-site storage, the Council said it has only one off-site facility service provider and that all physical files are registered on the relevant database. It said that if the applicant was in a position to provide approximate dates and email addresses or staff members-� names to which any missing emails may have been sent, further and more specific email check could be carried out, notwithstanding the extensive searches already undertaken.

In response, the applicant said she had not received copies of correspondence from TDs and solicitors that had been sent in recent months. She also identified certain specified records sent from legal representatives in 2020 and emails and telephone calls from her solicitor to meet with a named Council official.

The Council confirmed that it had received further correspondence since the applicant-�s FOI request but noted that those records do not fall within the scope of the request as they were not held by the Council when the request was made. On the matter of the specific letters from legal representatives, it noted that two letters from the legal representatives in question were included in the file that was released as record 1. Finally, on the matter of the contact with the named Council official, the council said the staff member concerned checked his emails and has nothing seeking a meeting nor has he received any calls. It said a search was also carried out on the Council-�s CRM system for any calls from the named solicitors relating to a meeting request and nothing was found.

On the matter of records that were created after the date of the applicant-�s request, our review is confined to considering the question of access to records that existed at the date of the request and the Council is correct in finding that the later records do not fall within the scope of the request made in this case. Nevertheless, I presume the Council has no difficulty in releasing copies of those records and if the applicant wishes to obtain copies, she should contact the Council to arrange for their release.

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. The Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body-�s records management policies. Moreover, the Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.

It is also important to note that 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 sought.

I appreciate that the applicant is understandably disappointed that additional relevant records cannot be found. Nevertheless, having regard to the Council-�s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the ground that no further relevant records exist or can be found.

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 additional relevant records relating to the applicant-�s housing application on the ground that no further relevant records exist or can be found.

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