Records that cannot be found or do not exist
(1) If— (a) all reasonable steps have been taken to find a record requested; and (b) there are reasonable grounds for believing that the record— (i) is in the public body’s possession but cannot be found; or (ii) does not exist, the information officer of a public body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.
(2) The affidavit or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question or to determine whether the record exists, as the case may be, including all communications with every person who conducted the search on behalf of the information officer.
(3) For the purposes of this Act, the notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record.
(4) If, after notice is given in terms of subsection (1), the record in question is found, the requester concerned must be given access to the record unless access is refused on a ground for refusal contemplated in Chapter 4 of this Part.
What this means in practice
- If a public body can't find a record or it doesn't exist, the information officer must say so by affidavit or affirmation, accounting fully for the search.
- That sworn notice counts as a refusal; if the record later surfaces, access must follow unless a Chapter 4 ground applies.
PopiGuard captures the search trail s.23 requires, so a 'cannot be found' affidavit is defensible.