Whether the Hospital was justified in refusing, under section 15(1)(a) of the FOI Act, access to CCTV footage sought by the applicant on the ground that the record sought no longer exists 

 

OIC-110024-F1F5W8

 

Background

 

In a request dated 1 September 2019, the applicant sought access to CCTV footage, and audio of same if it was present, for a particular date and time at a specified location within the Hospital, when and where, according to him, an incident had occurred. As the Hospital failed to issue a decision on the request within the relevant time period, the applicant sought an internal review of the deemed refusal of his request on 5 November 2019.

 

On 18 November 2019, the Hospital refused the request under section 15(1)(a) on the ground that the requested CCTV footage no longer existed. The applicant sought an internal review of that decision on 21 November 2019. He also inquired as to the retention period for CCTV footage in the Hospital. The Hospital issued its internal review decision on 23 November 2019, in which it affirmed its refusal of the request. It noted that the applicant had made his request within the 30-day CCTV footage retention period, but said that due to pressures on the Hospital’s service caused by an exceptionally high volume of requests, by the time the footage was sought by the FOI Department it was outside the 30-day retention period and the footage had been deleted in line with the retention policies.

 

On 29 February 2020, the applicant sought a review by this Office of the Hospital’s decision. Unfortunately, due to a technical issue, the details of the application were not properly recorded and the review did not proceed at that time. Subsequently, on 8 July 2021, this Office exercised its discretion to accept a late application for a review of the Hospital’s refusal of the applicant’s request.  

 

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 communications between the Hospital and the applicant referred to above and to communications 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 Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing access to CCTV footage sought by the applicant on the ground that the record sought no longer exists.  

 

 

Preliminary Matter

 

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comment. The remit of this Office does not extend to examining the manner in which public bodies perform their functions generally, to investigate complaints against public bodies, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies. As noted above, this review is confined to considering the Hospital’s decision on access to records sought by the applicant in his FOI request.

 

In his submissions to this office, the applicant suggested that a section 44 investigation was necessary in the circumstances. Amongst other things, section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act. A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon.

 

Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. In the particular circumstances of this case, I am satisfied that an investigation under section 44 is not warranted.

 

 

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. 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 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.  

 

During the course of the review, the Hospital provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why the record sought no longer exists. In essence, the Hospital’s position is that the FOI Department of the Hospital did not ask the Security Department to retain the relevant footage prior to its deletion, and that it was deleted after 30 days per the Hospital’s CCTV footage retention policy.

 

In its submissions, the Hospital stated that it had consulted its Security Department in relation to the CCTV footage sought. It said that if CCTV footage is not secured, it is automatically deleted after 30 calendar days. It noted that the applicant’s request from 1 September was not dealt with until after the 30-day window of opportunity to secure the CCTV footage had elapsed, and therefore the specific footage requested was no longer available when the request was being processed. The Hospital stated that due to large volumes of FOI requests to the Hospital at the time, there were backlogs, which resulted in delays.

 

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. While it is unfortunate that the Hospital did not request that its Security Department retain the footage prior to the 30-day retention period, the question I must consider is whether the Hospital has, at this stage, provided an adequate explanation as to why the record sought does not exist. Having regard to the Hospital’s submissions, I am satisfied that it has.

 

For the sake of completeness, I should add that section 52 of the Act provides that where a request has been made in respect of a record, a person who without lawful excuse and with intention to deceive destroys or materially alters a record shall be guilty of an offence and be liable on summary conviction to a class B fine. While the applicant contended that the Hospital deliberately deleted the record to prevent him from accessing his data, he has presented no evidence in support of that contention.

 

It is a matter of some concern that the Hospital did not act to retain the relevant footage sought as soon as it received a request for same, in circumstances where it ought to have known that such records are routinely destroyed after 30 days. Nevertheless, in the absence of any evidence to suggest otherwise, I accept the Hospital’s explanation that the failure to retain the record sought in this case arose simply as a result of the delay in requesting the retention of the footage due to a backlog in processing requests. No evidence has been presented to suggest that the record was destroyed with intention to deceive, and I am satisfied that this was not the case in this instance. However, I expect that the Hospital will have learnt from its mistake and I expect it to have revised its procedures at this stage to ensure that all future requests are assessed as early as possible in the process to determine if the records sought are in danger of being destroyed in line with standard retention policies and if so, to ensure that such records are retained until the completion of the FOI Process, which includes any subsequent review by this Office.

 

In conclusion, I find that the Hospital was justified in refusing access, under section 15(1)(a) of the Act, to the CCTV footage sought on the ground that the record no longer exists.

 

 

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Hospital to refuse, under section 15(1)(a) of the Act, the applicant’s request for CCTV footage on the ground that the record sought no longer exists.

 

 

 

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

 

Stephen Rafferty

Senior Investigator