Decision 195/2006 Mrs Dawn Bonelle and Midlothian Council
Records of social work investigation
Applicant: Mrs Dawn Bonelle
Authority: Midlothian Council
Case No: 200503225
Decision Date: 30 October 2006
Kevin Dunion
Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
Decision 195/2006 Mrs Dawn Bonelle and Midlothian Council
Request for records of Midlothian Council's investigation into a social work report produced by West Lothian Council
Relevant Statutory Provisions and Other Sources
Freedom of Information (Scotland) Act 2002 sections 17 (Notice that information is not held) and 10(1) (Time for compliance).
The full text of each of these provisions is reproduced in the Appendix to this decision. The Appendix forms part of this decision.
Facts
Mrs Bonelle asked Midlothian Council (the Council) to provide her with all the information it held relating to an investigation it conducted into a social work report produced by West Lothian Council.
Having received no response within the statutory timescale, Mrs Bonelle requested Midlothian Council to review its actions in regard to her request.
The Council responded to this stating that it only held one letter in relation to the investigation, and provided her with a copy of this.
Mrs Bonelle then appealed to the Scottish Information Commissioner for a decision regarding the Council's handling of her request.
The Commissioner found that the Council did not hold any further information falling within the scope of the request but had failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) by failing to respond to Mrs Bonelle's request within the timescale set down in section 10(1).
Background
1. On 22 October 2005 Mrs Bonelle wrote to Midlothian Council (the Council) requesting all the information it held regarding the investigation it conducted into the production of a named social work report by West Lothian Council.
2. Having received no response by 23 November 2005, Mrs Bonelle wrote to the Council again requesting it to review its actions in regard to her information request.
3. The Council responded to her on 19 December 2005 apologising for the delay in responding, which it said had been caused by a significant period of absence on the part of the responding officer.
4. The Council stated that it only had one letter relating to the investigation, and released this to her, advising that it had no other records and therefore could not provide any other information.
5. Mrs Bonelle then (27 December 2005) appealed to the Scottish Information Commissioner for a decision, stating that she was certain other documentation had existed at one point.
6. The case was allocated to an investigating officer and the application validated by establishing that Mrs Bonelle had made a request for information to a Scottish public authority and had applied to me for a decision only after asking the authority to review its actions in regard to her request.
Investigation
7. I invited comments from the Council as I am required to do under section 49(3)(a) of FOISA.
8. I also asked the Council to provide me with details of its investigations procedures, procedures for handling information requests made under FOISA, and details of the search undertaken for the information requested by Mrs Bonelle.
9.T he Council replied providing copies of its Social Work Complaints Procedures, which include a section on external investigations, and its procedures for handling information requests.
10. It also stated that following the investigation, Midlothian Council submitted its report to West Lothian Council in the form of the letter outlined in paragraph 4, and subsequently destroyed or returned to West Lothian all papers received from West Lothian Council and notes generated as part of the investigation.
11.I t informed me that the Social Work division undertook an electronic and paper search for documents relating to Mrs Bonelle's request, but were only able to find the one letter that was subsequently sent out to her.
12. In regard to the handling of Mrs Bonelle's information request, the Council acknowledged that its response to her was outwith the 20 working day period, but explained that this had been due to a significant period of absence on the part of the responding officer. Whilst normally, the request would have been passed to another member of staff to handle it had been decided to leave it for the responding officer to handle on his return due to his personal involvement so far.
13. In response to a subsequent request for further evidence of this search, the Council was able to provide evidence of the search being discussed, but could not show search results for electronic and paper files produced from a departmental or organisational records management system.
14. In addition, it confirmed there was no specific policy guidance regarding the length of time records of the type requested are held for, and was not able to provide evidence of the destruction of the records requested.
Commissioner's Analysis and Findings
15. Firstly, it is clear that the Council did not respond to Mrs Bonelle's original request for information within the statutory timescale specified by sections 10(1) of FOISA and therefore failed to comply with the requirements of that provision.
16.T he Council stated to me that it had destroyed all of the records requested by Mrs Bonelle apart from the letter that it released to her.
17.W hen asked to provide a record of a search being carried out, the Council provided me with a copy of an e-mail exchange between those officers involved in the investigation, asking what papers were held in relation to Mrs Bonelle's request and responding to that question by confirming that only the one letter subsequently released was in fact held. The Council also stated to me that it was unable to provide evidence of a further paper record search taking place, although one of the officers concerned had confirmed verbally that this had been done. More extensive searches had not been carried out as no other officers of the Council had been involved in the investigation.
18. Similarly, the Council informed me that it did not hold a record of any records being destroyed or returned to West Lothian Council.
19. It would have been helpful, to say the least, for there to have been a Council policy specifying timescales for the destruction of records of this kind and for there to have been a record of the destruction or return of the records in question. That said, and considering the limited number of officers who were likely to have the records in question had they still been held, I am prepared in all the circumstances to accept, on the balance of probabilities, that no further information is held by the Council falling within the scope of Mrs Bonelle's request. Therefore, the Council was entitled to deal with Mrs Bonelle's request in accordance with section 17 of FOISA
20. I note that the Council is considering guidance on the retention and destruction of this kind of record and would urge that it progress this as a matter of priority.
Decision
I find that Midlothian Council (the Council) did not handle Mrs Bonelle's request for information in accordance with Part 1 of FOISA in that it failed to comply with section 10(1). I do not require the Council to take any action in consequence of this breach.
I also find, on the basis of the information provided during my investigation, that the Council does not hold the records requested by Mrs Bonelle, other than the letter provided to her, and therefore was entitled to deal with Mrs Bonelle's request in accordance with section 17 of FOISA.
Appeal
Should either Mrs Bonelle or Midlothian Council wish to appeal this decision, there is an appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days of receipt of this notice.
Kevin Dunion
Scottish Information Commissioner
30 October 2006
Appendix
Relevant Statutory Provisions
Freedom of Information (Scotland) Act 2002
17 Notice that information is not held
(1) Where-
(a) a Scottish public authority receives a request which would require it either-
(i) to comply with section 1(1); or
(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),
if it held the information to which the request relates; but
(b) the authority does not hold that information, it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.
(2) Subsection (1) is subject to section 19.
(3) Subsection (1) does not apply if, by virtue of section 18, the authority instead gives the applicant a refusal notice.
10 Time for compliance
(1)? a Scottish public authority receiving a request for which requires it to comply with section 1(1) must comply promptly; and in any event by not later than the twentieth working day after ?
(a) ? the receipt by the authority of the request.
