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Case Number: 170318

Whether the Department was justified in refusing access to the source of a report about the applicant's livestock, on the ground that no record containing that information exists

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

This application for review has its background in a visit to the applicant by an official from the Department's District Veterinary Office, on foot of a report the Department received about the applicant's livestock. On 13 February 2017 the applicant submitted a request under the FOI Act for "the source of this report".

In its decision of 4 April 2017 the Department refused the request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist. On 24 April 2017 the applicant sought an internal review of the Department's original decision. On 19 May 2017 the Department decided to affirm the original decision. On 18 June 2017 the applicant sought a review by this Office of the Department's decision.

In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the source of a report about the applicant's livestock under section 15(1)(a) of the FOI Act on the ground that no record containing the information sought exists.

Preliminary Matters

While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Secondly, it is important to note that this review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. However, it is incumbent on the Department to explain to this Office why it considers that the records do not exist.

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. In cases such as this one, the role of this Office is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.

In a submission to this Office dated 4 September 2017, the Department stated that it had established that no records exist containing the information sought. It stated that the complaint was made in the form of an anonymous phone call and that the visit was made on foot of this anonymous phone call. The Department further stated that the staff member who took the call confirmed that no record of the call was created. I have no reason to doubt this.

Having regard to the Department's explanation of the manner in which the report concerning the applicant's livestock was received, I find that the Department was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the source of a report about the applicant's livestock under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist.

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