Annual Report 2008 - Text

Failure to locate Records

Section 10 (1)(a) of the FOI Act allows a public body to refuse to grant access to records on one of the so-called administrative grounds where -

"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

Unquestionably, this is the most frequently cited exemption that my Office comes across in applications for review by requesters who are dissatisfied with a public body's decision on their FOI request. Perhaps this is not surprising given that requesters sometimes use FOI to try to establish what, if anything, is held about them or about an issue of interest to them. In early 2007, I published a report under section 36 of the FOI Act of an investigation carried out by my Office during 2006 of decisions made during 2005 in relation to these '' adequacy of search'' cases (''Review of Operation of Act and Investigations by the Commissioner'' ). I presented the recommendations from the investigation in the form of "The Information Commissioner's Guide to Standards of Best Practice for Public Bodies when dealing with FOI requests that involve searches for records" which is available on the Office website www.oic.ie

As is illustrated in the case summarised below, it can be frustrating for requesters that my Office's role is restricted to assessing whether the public body's decision under section 10(1)(a) was justified. In other words, my Office is limited to assessing and making a finding as to the adequacy of the search carried out in the particular circumstances of each review. I do not have jurisdiction under the FOI Act to become involved in whether the public body acted correctly in its administration of a scheme or its handling of the event which gave rise or should have given rise to the creation of the records sought. In some cases, although one would have expected to find that certain records exist, the likelihood is that none is held either because officials did not create any manual or electronic record or because such a record was created but not retained or filed so as to be efficiently retrievable under a proper records management policy.

Mr. X and Galway County Council (Case 070290)

Background and Records Sought

The owner of three horses which apparently, had been picked up by a haulage company on the instructions of the Council in March 1999 for the purpose of bringing them to a horse pound, requested access to the "paper trail" surrounding that event. The statutory basis for such seizure and detention of horses is in the Control of Horses Act, 1996 which sets out various requirements in relation to notice of the seizure and identification of the animals.

  • Among the records sought were:
  • a copy of the video from the nominated pound
  • a copy of the markings taken and the microchip numbers of the horses
  • a copy of the notice posted in the Garda Station for the area in which the horses were seized
  • a copy of the notice posted at the pound
  • details of the destruction of the horses, the factory or otherwise and the name of the veterinary surgeon who oversaw the destruction
  • a copy of the haulier's insurance.

Council's Decision

The Council refused the FOI request stating that the information was "the subject of Court Proceedings". The decision to refuse access did not cite any section of the FOI Act. When the applicant applied to the Council for an internal review of that decision, he was told that some of the items of information sought were not records for purposes of the FOI Act and others either did not exist or could not be found after all reasonable steps to ascertain their whereabouts had been taken. The issue for my Office when the applicant applied for review was whether the Council was justified in its decision to refuse access to records concerning the seizure and destruction of the horses belonging to the applicant.

Views of my Office as put to the Council

My Office noted the original grounds for refusal with concern. It is important to be clear that the FOI Act does not provide for refusal of access to records for reasons that are not grounded in a specific exemption in the FOI Act. The Council's contention that the details of the disposal of the horses and of the name of the veterinary surgeon who oversaw the disposal were not "records" for purposes of the FOI Act was untenable. It would have been reasonable for the Council to take it that, if the information sought was contained in any record held by it, it was potentially accessible under FOI.

In relation to the records which the Council said it did not hold, my Office found it unusual, to say the least, that any local authority would fail to create a record of what happened to three horses seized in accordance with a statutory provision and , according to one record which subsequently came to light, disposed of "by putting them down''.

The Investigation

The Council appeared to accept my Office's view that its reference to court proceedings had been irrelevant in this case. In reviewing the basis for the Council's position that it held no further relevant records, my Investigator put a number of queries to the Council. For instance, she pointed out that the Control of Horses Act required the maintenance of a register with details of the horses. The Council confirmed that it does not have such a register in "in book form" and the only "register" maintained during this time was a typed schedule which contained the number of horses seized over the period and the horse pound to which the seized horses were referred. The schedule did not contain any level of detail or identification of the horses seized. In response to further queries, the Council confirmed to my Office that it had no procedure in place to track the movement of seized horses.

In relation to the notice posted in the local Garda Station, the Council, following the intervention of my Office, contacted the member of the Garda Síochána who had stated that he had placed the required notice on the notice board at the Station on the day that the horses were seized. The Council asked him to search his records and he subsequently confirmed that he did not hold either the notice or a copy of same. The Council's position on the copy of the Notice posted at the horse pound was that no information was available to suggest that such a record, if it ever existed, had been retained by the Council. The fact that nine years had passed since the events in question took place was a factor which had to be taken into account in regard to this.

My Office asked the Council to clarify its position on any other records, including veterinary records. In reply, the Council advised that the only record containing details of the disposal of the horses was a hand-written letter from the haulage contractor dated 7 November 2001 which had already been given to the applicant. Insofar as the disposal of the horses was concerned, that letter stated only that "they were disposed of by putting them down" and made no reference to any veterinary attention. My Office took the view that the statutory provisions made it clear that the detention and disposal of animals is an area which is closely regulated. It was also clear that the destruction of an animal would be an exceptional measure. In this regard, the applicant provided a copy of a video of a news extract from 2002 in which a spokesperson for the horse pound involved stated that the destruction of any horse detained at the pound was an extremely rare event. The example given was that in a period when 5,000 horses were admitted to the pound, 1,000 horses were re-homed and 26 were put down on veterinary grounds. Overall, my Office stressed to the Council that it had great difficulty in accepting the position that, if the horses were put down as the Council and its agent claimed, no contemporaneous records whatsoever of the destruction of three horses existed. The Council repeated its contention that no such records were held.

Review Decision

Eventually, having considered all of the circumstances and the responses of the Council to the various queries, it was decided to bring the review to a close. My Office varied the Council's decision insofar as it related to one additional record which came to light in the course of the review and directed the release of that record to the applicant. This was a copy of the insurance cover note for the period in question which was obtained by the Council from the haulage contractor following queries from my Office. Otherwise, my Office found that the Council had justified its refusal of access to further records on the basis that such records do not exist or cannot be found and therefore that section 10(l)(a) of the FOI Act applies.

The FOI Act does not empower my Office, in the course of a review under section 34 of the FOI Act, to adjudicate on how the Council performed its functions generally; the review extended only to whether or not the Council was correct in refusing access to particular records on the basis that they are exempt from release under the provisions of the FOI Act. The Act does not require the creation of records where such records do not exist or are not already held by it, nor does it make provision for records which ought to exist.

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