Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to correspondence referring to “ghost booking” or “to ghost book a client” on the ground that no relevant records exist

 

OIC-108825-X3V8V8

 

Background

On 31 March 2021, the applicant submitted a request to the Council for “all internal and external correspondence referring to ghost booking or to ghost book a client”. As the Council failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request.

 

On 2 June 2021, the Council issued its internal review decision in which it refused the applicant’s request under section 15(1)(a) on the ground that the records sought did not exist. It provided some background to the term “ghost booking”. It explained that it is a colloquial term that was used historically to denote bookings into homeless emergency accommodation where the service user had not been set up on the PASS system or was booked in for one night by the Outreach Team into emergency beds out of hours. It said the term would have been used in conversations but is no longer in use and the bookings in question are referred to as temporary bookings, pending assessment. On 11 June 2021, the applicant sought a review by this Office of the Council’s decision based on her view that correspondence exists within the council wherein the term is used.

 

I have now completed my review in this case. I have decided to bring the review to a close by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

 

Scope of Review

This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to correspondence “referring to ghost booking or to ghost book a client” on the ground that no relevant records exist or can be found

 

Preliminary Matter

In her application for review, the applicant explained why she was seeking access to the records in question. 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 generally be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records, 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 (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 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.

 

During the course of the review, Ms Whelan of this Office sought details of the searches carried out to locate records falling within the scope of the applicant’s request. In its response, the Council said only one general email exists that refers to “ghost booking”, an instruction to staff. It said any other mention of the term is specifically in relation to a particular individual and their booking and so “would not be appropriate to include.” Following a further exchange of correspondence, the Council acknowledged that other records containing the term do, in fact, exist. It said it was conducting a full search for all relevant records.

 

Having regard to the Council’s confirmation that it holds relevant records, I am simply not in a position to find that the Council was justified in refusing the request under section 15(1)(a) in this case. However, I do not consider it appropriate to simply direct the release of the records in question having regard to the fact that at least some of the records may contain personal information relating to third parties.

 

In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council in its entirety, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for “all internal and external correspondence referring to ghost booking or to ghost book a client”. I direct the Council to conduct a new decision-making process on the applicant’s request.

 

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