Section 16 Manual

Appendix 2: 'Adequacy of search' - guidelines

From time to time cases arise where access is refused on the basis that records do not exist or cannot be found. The purpose of the following guidelines is :

to explain the role of the Information Commissioner in such cases,
to set out the steps which need to be taken in order to conduct a proper review, and
to explain the basis for the Commissioner's decisions in this area and to give guidance on how such decisions should be drafted.

These guidelines cover hard copy records only. The public body's policy on electronic information management, including such matters as editor rights, security of data, back up procedures, off site storage may all come into question if an electronic record cannot be found.

The role of the Information Commissioner

It is necessary to be clear at the outset that it is not, in the normal course, the Commissioner's function to search for records. The Commissioner's role is to review the decision of the public body to refuse access on the grounds that the record requested does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts. This means that, as in any other review, the Commissioner 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 the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the decision maker has concluded that the steps taken to search for the records were reasonable.

The role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether s/he was justified in coming to the decision that the record does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts.

The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) where he said:

"I am satisfied also that the respondent's [Commissioner's] understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

In such cases the Commissioner must :

ascertain what evidence was available to the decision maker,
ascertain whether, in the circumstances of the case, it was sufficient for the decision maker to rely on that evidence or whether further particular evidence should have been sought, and
decide whether, based on the evidence available to him/her, the decision maker was justified in concluding that the records did not exist or could not be found after all reasonable steps had been taken to ascertain their whereabouts.

It should be noted that a decision of the Commissioner to affirm a decision by a public body, that access should be refused on the grounds that section 10(1)(a) applies, is open to challenge in the High Court and Supreme Court on a point of law. In the circumstances, it is essential that Investigators establish whether the decision maker had regard to all the relevant evidence and whether the conclusions based on that evidence were justified.

Procedures in "search" cases

It should be explained to public bodies what the Commissioner's role is in this kind of case and what the requirements of the Office are likely to be. Public bodies should be reminded, where appropriate, that it is open to staff of the Commissioner's Office to visit their Offices to establish the nature and extent of the search carried out and/or to examine their record management practices. It is not possible to be definitive about these requirements because, having reviewed the evidence available to the decision maker, it may be decided that further explanations are required. It is important that public bodies understand that the onus is on the public body to satisfy the Commissioner that all reasonable steps have been taken and that, if the Commissioner is not satisfied, he/she will require further steps to be taken.

At the same time, public bodies should not be left with the impression that the Commissioner will require further steps in all cases where records cannot be found or that she will continue require searches to continue until such time as the records are found. This is because it is possible - and this is clearly envisaged by the Act - that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts.

As part of the review in such cases the Commissioner will usually need to :

(1) Ascertain the record management practices of the public body as they pertain to the record or records in question.

This means that matters such as the following may need to be known :

how and when records of the kind at issue were created or received,
how such records are or were used,
what sections of the public body would normally consult such records,
where are or were the records kept while in active use,
in the case of "dormant" files (i.e. files no longer in active use) who is responsible for them,
whether there is a register of files and, if so, what it discloses,
the public body's practice as regards destruction of records.

What is being sought here is information about the record management practices of the public body insofar as those practices are relevant. The degree of detail which will be required will vary according to the type of records being sought. An exhaustive description of the public body's record management practices will not normally be needed nor in many cases will it be useful.

(2) Ascertain what steps were taken to find the record(s).

The steps taken by the public body should be established in detail including, how and by whom and what records were actually searched for. For example, ascertaining that a general e mail or memorandum was circulated, even if it has been responded to by all recipients, is not sufficient. It is necessary to know what the recipients of the e mail or memorandum did. Part of the difficulty here can be that all reasonable steps have been taken but the public body did not properly record the steps. This situation is less likely to arise where, for example, the public body circulates a form (e mail or hard copy, as appropriate), which each recipient is obliged to return certifying that he/she has searched the areas under his/her control (and giving details of how the search was conducted) and that the file(s)/record(s) have not been found.

(3) Decide in the light of (1) and (2) above whether all reasonable steps have been taken.

Deciding whether all reasonable steps have been taken requires the exercise of judgement and each case must be considered on its merits. One useful benchmark is to ascertain what additional steps, if any, the public body would take if it had to find the record urgently for a senior official such as the Secretary General or CEO.

A second useful benchmark is to consider whether a search has been conducted of locations where the record might be as opposed to should be. The point here is that the mis-filing or misplacing of records is a common enough occurrence. Given that this is so, if the public body has confined its search to the places where the records ought to be then it can hardly be said to have taken all reasonable steps. The following two examples refer to whole files, but similar steps could be devised for individual records, depending on the type of records being sought. Consider whether the file was mis-filed (i.e. placed in the wrong order in a series of files which are ordered by name or number). Mis-filings are common but experienced record keepers have techniques for finding such files e.g. where filed by numbers, look at half a dozen files either side of the number, look at transposed numbers, dropped digits etc. It may be necessary to obtain evidence from the record keeper.

Consider whether the file was misplaced (i.e. associated with another unrelated file or filed in the wrong series altogether). Once again, if there is someone who has overall responsibility for the files they will know the common causes of files "going missing" and may be able to suggest further ways of locating such files.

If a file is missing or destroyed then it may be possible to reconstruct it either wholly or partially, if its contents were generated within the public body. Whether this is necessary or useful (from the requester's point of view) depends on the circumstances of the case. If there has been correspondence with another public body, it may be possible either to obtain copies of some records or to identify reference numbers which could help in the search.

(4) Consider if there has been a deliberate removal of records.

If there is any suspicion that records have been deliberately interfered with, the case should be referred to the Senior Investigator before the point is taken up with the public body. In such cases the Senior Investigator may recommend to the Commissioner that further action be taken in relation to the matter.

(5) Consult the requester

In some cases it may be appropriate at an early stage to consult the requester. This is particularly so where it is alleged that records exist but are being concealed. A requester could be asked why precisely he/she thinks records exist or for a history of his/her dealings with the public body or any other evidence such as reference numbers, dates etc. which might help in the search. It should be explained that the purpose of such questions is to better enable the Office to pursue the matter with the public body.

(6) Require further steps

Having taken the steps outlined at (1) to (5) above, the conclusion may be arrived at that all reasonable steps have not been taken by the public body and that it should be asked to take further steps. This should be done in writing and any response should be in writing. Staff should avoid asking for further searches until they are in possession of the full facts, ascertained as a result of steps (1) to (5) above.

Ideally, the outcome of those further steps should be either that the records will be found or that the position may be reached to conclude that the records cannot be found after all reasonable steps have been taken. On occasion, it may be necessary to go back to the public body a second time (for example, if new evidence emerges during the course of the further searches). If, having completed the work at (1) to (6) above, the record(s) cannot be found and the Office is satisfied that all reasonable steps have been taken, the staff member dealing with the request may, before recommending a final decision, write to the requester explaining in some detail what steps were undertaken by the public body and why it is considered that all reasonable steps have been taken. This course of action might be appropriate where the staff member considers that there is some prospect that the requester might agree to settle the case on the basis, for example, that a more thorough search had been undertaken or that there was evidence that the record(s) did not exist.

Whether the steps outlined at (1) to (3) above are undertaken in writing or through meeting the officials of the public body is left to the discretion of the Investigator in each case. However, in all cases, Investigators should ensure that written confirmation is obtained from the public body of what steps were undertaken and of any relevant facts put to them before recommending a decision to the Commissioner.

Drafting of decisions

Section 10(1)(a) permits refusal if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner will not normally make a composite finding to the effect that a record does not exist or cannot be found. In some cases he/she may find that a record does not exist but such a finding would have to be supported by direct and compelling evidence. For example, a record may have existed at one stage but the body might claim that it had been destroyed. A contemporaneous note that particular records, of which the requested record was one, had been destroyed would normally be acceptable as evidence.

Where there is evidence of the existence of the record at one stage but it cannot be found now and the public body does not claim that it was destroyed or offers no evidence that it was destroyed, then a different approach is necessary. In such cases the finding must be that the record cannot be found. Where a particular identifiable file is at issue it is necessary to address the matter of that file in particular. However, depending on the circumstances of the case, a finding that no other records can be found may also be appropriate.

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