Mr Y and The Department of Communications, Energy and Natural Resources

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 15 July 2015
• Case Outcome: The Senior Investigator found that the Department was justified in its decision to refuse access to the record sought by the applicant under section 15(1)(a) of the FOI Act. She affirmed the decision of the Department
• Court: Information Commission
• Record Number: 150075
• Respondent: The Department of Communications, Energy and Natural Resources

Whether the Department was justified in its decision to refuse access to a full and final version of the Sustainable Management of Interactions between Aquaculture and Wild Salmonid Fish (SUMBAWS) report sought by the applicant under section 15(1)(a) of the FOI Act on the basis that the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 28 November 2014 the applicant submitted a request to the Department for "the full and final report of the SUMBAWS Project". On 30 December 2014, the Department refused the applicant's request under section 15(1)(a) of the Act, on the basis that the record was not held by the Department. The Department stated in its decision that the report sought by the applicant was co-ordinated by St. Andrews University, Scotland, and funded by the European Commission.

The applicant sought an internal review of this decision on 12 January 2015, as he was not satisfied by the response of the Department. On 9 February the Department issued its internal review decision, upholding its original decision to refuse access to the record under section 15(1)(a) of the Act. The internal review decision of the Department stated that while the Department did not hold the record sought by the applicant, it would assist the applicant in refining his request in order to facilitate access to the records which were held by the Department, and made reference to correspondence exchanged between the parties in which this invitation was offered.

On 13 March 2015 the applicant sought a review by this Office of the Department's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 16 June 2015 with details of the searches carried out by the Department to locate the record sought by him, and of the rationale employed by the Department in its decision that the "full and final" version of the SUMBAWS report was not held by it. Mr Foley informed the applicant of his view that the Department was justified in its decision, and invited the applicant to make further comments if he disagreed with this view. The applicant, in an email of 30 June 2015, stated that he remained of the opinion that the full and final version of the SUMBAWS report was held by the Department. The applicant had previously indicated, on 6 May 2015, that he wished this review to proceed to a decision. I therefore consider that this review should be brought to a close by issue of a binding decision.

In conducting this review, I have had regard to correspondence between the Department and the applicant. I have also had regard to communications between this Office and the applicant, to communications between this Office and the Department, and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the record sought by the applicant under section 15(1)(a) of the Act, on the basis that the Department has determined that the record is not held by the Department or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Preliminary Matters
At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally. Furthermore, this Office is concerned with ensuring public access to existing records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist, nor does it place any obligation on a public body to create records in response to an FOI request.

Analysis and Findings

The Department's position is that it does not hold the record sought by the applicant. Accordingly, section 15(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been...