Mr X and Citizens Information Board

• Judge: Senior Investigator
• Judgment Date: 29 March 2021
• Case Outcome: The Senior Investigator varied the decision of the CIB. He affirmed the decision with regard to two parts of the applicant's request and annulled it with regard to one part, directing the CIB to undertake a fresh decision making process in respect of that part.
• Record Number: OIC-62336-R8J7N5
• Respondent: Citizens Information Board
• Court: Information Commission

Whether the CIB was justified in its decision to refuse the applicant’s request for access to certain additional records relating to an identified Money Advice and Budgeting Service (MABS) Company other than those already released to him under section 15(1)(a) on the ground that no further relevant records exist or can be found

29 March 2021

Background

The Money Advice and Budgeting Service (MABS) provides advice for people who are experiencing difficulties with personal debts. It operates from a number of offices nationwide and is currently governed by eight Regional Boards, each of which is a company limited by guarantee and a registered charity. It is funded and supported by the CIB.

On 15 August 2019, the applicant submitted a six-part request to the CIB for records relating to a specific Regional Board (the Company). Specifically, he sought access to:

1. All records, including emails, correspondence, memos, minutes of meetings, records of phones calls, internal or external and any other relevant document relating to the appointment/recruitment of Directors, to the Company since May 2018.
2. The information booklet that accompanied the original application form (25th May 2018 deadline) for board members of the new regional service delivery companies
3. All records, including emails, correspondence, memos, minutes of meetings, records of phones calls, internal or external, and any other relevant document relating to any decisions (and the reasons for) made on the expression of interest/membership of /recommendation for appointment to the board of the Company submitted by him.
4. Any written or recorded approval (in any format) issued to the board of the Company by the CIB to operate with less than 7 directors.
5. All records, including emails, correspondence, memos, minutes of meetings, records of phones calls, internal or external, and any other relevant document relating to the resource reports on MABS funding in a named county, submitted by the applicant and the Society of Saint Vincent de Paul since August 2018.
6. All communications and correspondence, in any format, internal or external relating to the Company dealing with staff recruitment, staff allocation, geographic distribution of staff, the staffing strategy, resource money advisers and the work plan since July 2019.

On 12 September 2019, the CIB decided to part-grant the request. It redacted certain information from a number of records under section 37 of the Act on the ground that release of the information would involve the disclosure of personal information relating to third parties. It refused access, under section 15(1)(a), to emails, correspondence, memos, meetings, and minutes of meetings relating to parts 1 and 3 of his request on the ground that such records had been deleted and do not exist and records of phone calls relating to parts 1, 3, 5, and 6 on the ground that they never existed.

On 24 September 2019, the applicant sought an internal review of the CIB’s decision wherein he provided examples of additional records not received under parts 1, 3 and 5 of his request. He also queried whether the CIB had contacted the Company to determine if it holds relevant records. In its internal review decision of 15 October 2019, the CIB affirmed its decision to refuse access to further relevant records under section 15(1)(a) on the ground that no such records could be found. It noted that a number of the records sought related to the work of its Restructuring Team and, as 16 regional companies (including the eight MABS regional companies) had now been created, the CIB had no reason to hold on to those documents, emails, and correspondence.

On 18 February 2020, the applicant sought a review by this Office of the CIB’s decision. He included in his application for review a substantial list of documents he believed should exist.

During the course of the review, the CIB located and released five additional relevant records. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the CIB and the applicant as outlined above and to correspondence between this Office and both the CIB and the applicant on the matter.

Scope of Review

During the course of this review, the CIB said that certain records were not released to the applicant on the basis that they had previously been provided to him in response to a subject access request that he had made under the Data Protection legislation. Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. The applicant confirmed to this Office that relevant records that had previously been released to him could be excluded from the scope of this review. However, he argued that there were also further related records, which had not been released.

Moreover, during the review, the investigating officer informed the applicant that in light of the issues he referenced in his request for an internal review of the original decision, the review would focus on whether the CIB holds additional records coming within parts 1, 3, and 5 of his request other than those already released. In response, the applicant said he had no objection to the scope of the review as described.

Accordingly, this review is concerned solely with whether the CIB was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for access to additional records coming within the scope of parts 1, 3 and 5 of his request other than those already released to him on the ground that no further relevant records exist or can be found. For the sake of completeness, I should add that I have not considered whether the CIB was justified in redacting, under section 37 of the Act, certain information from a number of the records released on the ground that it is personal information relating to third parties, as the applicant has not indicated that he required a review of that part of the decision.

Preliminary Matter

Before I address the substantive issues arising in terms of what records the CIB might hold that come within the scope of the applicant’s request, I wish to comment on the applicant’s argument that the Company itself is a public body. If this argument was correct, then it would be open to the applicant to submit a request directly to the Company for records and it would not be the responsibility of the CIB to consider the question of access to such records. As such, I do not consider it necessary to make a finding in respect of this argument in this decision.

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 Commissioner’s role 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.

I understand that when processing the request, the CIB did not seek to...