Records that cannot be found or do not exist: rules compared

Side by side

South Africa: the affidavit rule

PAIA section 23 applies where all reasonable steps have been taken to find a record and there are reasonable grounds for believing it is held but cannot be found, or does not exist ¹. The information officer must notify the requester by affidavit or affirmation ¹. The affidavit must cover all steps taken to find the record or to decide whether it exists, including all communications with every person who did the search ¹. The notice counts as a refusal ¹.

Australia: section 24A and the documented search

Australia's Information Commissioner says an agency cannot simply assert that a document cannot be found or does not exist before taking demonstrable steps to find it ². A thorough and systematic search must be undertaken and documented ². What counts as all reasonable steps depends on the request and the agency's normal business practices ².

Where the subject falls within the agency's work and its records show related work was done, further searches may be needed if the first ones find nothing ². The statement of reasons should identify the document and note the limits of any search ². If a record was or is likely to have been destroyed under the agency's records disposal authority, this should be explained with the date of destruction where possible ².

Ireland, Scotland and India: transfer and notice

Ireland's FOI Act 2014 lets a body refuse a request where the record does not exist or cannot be found after all reasonable steps to find it ³. If the body knows another FOI body holds the record, it must send that body a copy of the request within 2 weeks and tell the requester ⁴. A person is treated as having that knowledge if reasonable steps would have revealed it ⁴.

Scotland's FOISA section 17 requires an authority that does not hold requested information to give written notice that it does not hold it, within the time allowed for the request ⁵.

India's RTI Act requires a public authority to transfer a request, or the relevant part, to another authority that holds the information, and to inform the applicant immediately ⁶. The transfer must be made as soon as practicable and no later than five days from receipt ⁶.

Canada, the UK and the US: how claims are tested

Canada's Access to Information Act requires a refusal notice to state that a record does not exist where that is the case ⁷. Institutions must make every reasonable effort to assist requesters and respond accurately and completely ⁷.

In the UK, the ICO decides disputes about whether information is held on the balance of probabilities ⁸. It expects searches of places where the information would reasonably be found and says recording the areas, staff, keywords and dates searched is good practice ⁸.

In the US, courts ask whether an agency's search was reasonably calculated to uncover all relevant documents ⁹. The Department of Justice guide records court rulings that the inability to find every responsive record does not by itself undermine an otherwise reasonable search ⁹.