Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to training courses attended by the applicant while he was employed by the Council on the ground that no further records exist or can be found

17 June 2022

Background

In late 2021, the applicant sought access to all information and reports of all training courses he attended while employed by the Council from November 2015 to the date of his request.  In a decision dated 20 December 2021, the Council part-granted the request and provided the applicant with 23 records. It redacted personal information of other individuals under section 37 of the FOI Act. The applicant sought an internal review of that decision on 23 December 2021. He said he had asked for written reports and none were provided. The Council asked the applicant to clarify the nature of the reports sought and in response, he said that he was seeking all written reports from the courses he had done held by the fire services.

On 18 January 2022, the Council varied its original decision and provided him with records relating to assessments and training courses undertaken between 2015 and 2020. It said it held no other written reports relevant to his request.  Following further correspondence between the parties, the Council released further records relating to two specific courses. On 31 January 2022, the applicant applied to this Office for a review of the Council's decision.

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 Council and the applicant 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 Review

As noted above, the Council redacted personal information relating to third parties in a number of the records released. However, the applicant confirmed to the Investigating Officer during the review that he is not concerned with the redactions but is instead seeking access to further records that he believes should exist and have not been released.

The Council's position is that all relevant records have been released. This is, in essence, a refusal, under section 15(1)(a) of the Act, to provide any additional relevant records on the ground that no further records exist or can be found.

Accordingly, this review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the Act, any further records relating to training courses undertaken by the applicant from 2015 to the date of his request, on the ground that no further relevant records apart from those already released exist or can be found.

Preliminary Matters

It is important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded.  This means this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).

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. 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.

In his application to this Office, the applicant referred to two particular courses that he attended in 2016 and 2017 and the Council was asked to provide details of searches undertaken in an effort to locate records relating to these two courses. The Council said all documents relating to the 2016 course had been provided to the applicant and added that, as the applicant left the 10-day course after just completing two days, there were no further records other than those which had already been provided.  Regarding the 2017 course, the Council stated that all documents on file relating to the applicant had been provided and no other records within the scope of his request are held by it.

The Council provided this Office with details of searches it undertook in an effort to locate the relevant records and explained why it concluded that no further relevant records exist. As the Investigating Office provided the applicant with those details, I do not propose to repeat them in full here. Nevertheless, I confirm that I have had regard to them for the purpose of this review. In short, the Council said that the relevant records are held at the Fire Service Headquarters and that it twice carried out searches of the Fire Service training files, including manual searches of hard copy training records and electronic searches of the computers of the relevant fire officers. It provided a list of specific officials who were consulted about the matter. It added that the officers who carried out and supervised the training courses confirmed that the relevant training records were released.

Following receipt of the details of the Council's submission, the applicant argued that he had not received all relevant records. Specifically, he said he had not been given all relevant records relating to the relevant 2016 course. He said he was asked to sign some paperwork that was attached to the original file when he left the course. He said he signed two pages of statements as to why he left the course.

The Investigating sought further clarification from the Council concerning the 2016 course. In response, the Council said that no further records relating to the applicant are on file for the course, other than what was provided to him to date. It said the applicant left the course without prior notification of his intention to do so and had not signed any documentation, paperwork or statements. It said the Course Director rang him on the morning of the third day of the course to see where he was and that the applicant informed him that he had left the course and would not be returning. The Council said it is not clear what records he was referring to as having signed as the Course Director has no such records and cannot recall the applicant having to sign any statements. The Investigating Officer informed the applicant of the Council's position and received no further submission from the applicant on the matter.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. It is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

While the applicant maintains that further relevant records should exist, the question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the Council's submissions, and in the absence of evidence to suggest that other relevant searches are required, I find that has. 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 such 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, under section 15(1)(a) of the Act, the applicant's request for additional records relating to training courses he undertook, apart from those already released, 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