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Case Number: 160508

Whether the Prison Service was justified in refusing a request for copies of telephone calls the applicant received from his solicitor while in custody in Cloverhill Prison in 2010, on the ground that no such records exist

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Prison Service on 7 June 2016 for copies of telephone calls which he received from his solicitor during the period 23-27 August 2010, while he was in custody in Cloverhill Prison. As the Prison Service failed to issue a decision within the time frame set out in section 13(1) of the FOI Act, the applicant submitted a request for an internal review on the basis of the deemed refusal of his request, as provided for by section 19(1). Following communications with this Office, the Prison Service issued a letter to the applicant on 28 October 2016, refusing the request under section 15(1)(a) of the Act, on the ground that the records sought by him did not exist. On 15 November 2016, the applicant sought a review by this Office of that decision.

During the course of this review, the Prison Service provided details of its records management policy applicable to recordings of prisoner telephone conversations. It also provided information regarding the searches that it conducted to locate the records sought by the applicant. Ms Buckley of this Office provided the applicant with details of the relevant policy and the searches undertaken on 27 February 2017. She also informed the applicant of her view that the Prison Service was justified in refusing his request on the ground that the records sought did not exist. The applicant did not accept that view.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Prison Service and the applicant. I have also had regard to the communications between this Office and both the applicant and the Prison Service on the matter

Scope of Review

This review is solely concerned with whether the Prison Service was justified in refusing the applicant's request for copies of telephone calls he received from his solicitor during the period 23-27 August 2010, while he was in custody in Cloverhill Prison, on the ground that no such records exist.

Preliminary Matter

I want to highlight the poor handling of the applicant's request by the Prison Service. As noted above, neither an original decision nor internal review decision were issued within the time frames set out in the FOI Act. Furthermore, there was a delay in the Prison Service replying to a request from this Office seeking details of its relevant records management policy and of the searches undertaken to locate relevant records. This delay necessitated a formal notification being issued to the Director General of the Prison Service under section 45 of the FOI Act, requiring the provision of the information sought.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or cannot be found, after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in such cases 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records.

As I have outlined above, Ms Buckley of this Office provided the applicant with details of the Prison Service's records management policy applicable to recordings of prisoner telephone and of the searches undertaken to locate relevant records. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In summary, the Prison Service stated that its policy is for all telephone calls made on the prisoner telephone system to be recorded, with the exception of calls made to legal representatives and calls made to the Samaritans. The Prison Service stated that the telephone calls between the applicant and his solicitor were not recorded and, as such, no copies of these recordings exist.

The Prison Service stated that the operations staff on the prisoner telephone system conducted a search of all existing recordings of telephone calls, and it was confirmed that the recordings sought by the applicant do not exist. Furthermore, the Prison Service stated that the prisoner telephone system that was in place while the applicant was in Cloverhill Prison was replaced by a new system in September 2010, and all recordings made on the old system were destroyed approximately three years ago.

Having regard to the Prison Service's stated policy that is does not record telephone calls between prisoners and their legal representatives and the searches undertaken by the Prison Service, I am satisfied that all reasonable steps have been taken to locate the records sought by the applicant. I find, therefore, that the Prison Service was justified in its decision to refuse the request on the ground that no records exist, after all reasonable steps have been taken to ascertain their whereabouts.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Prison Service in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator