Whether the Council is justified in its decision to refuse a request for certain records made under section 7 of the FOI Act on the basis that they are exempt from release under the provisions of the FOI Act

Case Summary

The Senior Investigator found that the Council is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to additional records on the basis that such records do not exist or cannot be found.

Date of Decision: 18.02.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In a request dated 21 February, 2008 the Applicant sought access under the FOI Act to records relating to:

• the installation of pedestrian crossing lights and a traffic control kiosk at Martello Terrace, No 1, No 1a, No 2 and No 3 Newtownsmith, Sandycove;
• the installation of pedestrian crossings as provided for in the Council's 2007 Budget and
• an indented parking plan at Newtownsmith.

The Council issued its decision on 4 April, 2008 granting access to the records with redactions in relation to personal information of third parties and information obtained in confidence. The Council relied on the exemptions in Sections 26 and 28 of the FOI Act in this regard. The Applicant requested an internal review of that decision on 27 May, 2008. The Council affirmed its original decision on 15 July, 2008. The Applicant then applied to this Office, on 2 March, 2009, for a review of the Council's decision. He sought and was granted under section 34(4)(b) of the Act, an extension of the normal period of six months for the making of a valid review application.

In conducting this review, I have had regard to the submissions of the Council as well as those of the Applicant, the provisions of the FOI Acts, and the contents of the preliminary views letter, dated 01 October, 2009, sent to the Applicant by Ms. Anne O'Reilly, Investigator, of this Office, and the Applicant's e-mail response of 29 October, 2009. I consider that this case should now be brought to a close by means of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

The Applicant, in his application for review to this Office stated that his appeal was based on the omission of "many" relevant records such as documents relating to correspondence and phone conversations that he was a party to, including:

During the course of this review the Applicant provided this Office with copies of eleven (11) e-mails which he stated had not been released by the Council. Accordingly, the scope of this review is confined to whether the Council is justified in its decision to refuse access to additional records on the grounds that section 10(1)(a) of the FOI Act applies.

The Commissioner's Role in "Search" Cases

Section 10(1)(a) of the FOI Act provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records. This position has been approved by the High Court in Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.).

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to existing records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist.

Submissions

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Findings

The Council provided this Office with detailed information on its record keeping practices and the searches it carried out for the records requested by the Applicant, these were conveyed to the Applicant in Ms. O'Reilly's preliminary views letter. In relation to the record of a telephone conversation between the Applicant and the Council's Engineer, the Council stated that "this department does not log phone calls or details of phone calls . We will always request the customer to put their issue in writing if it cannot be resolved on the phone".

As explained to the Applicant by Ms Anne O'Reilly in her letter dated 1 October, 2009, following this Office's enquiries with the Council, it became apparent that there was some confusion over what records had actually been released, due to the fact that no schedule was prepared by the Council at the time of release of the records. In the Commissioner's opinion a schedule is very useful when dealing with records, however, there is no onus on a public body to prepare a schedule under the FOI Acts. However the Council has since informed this Office that it is now the policy of the Council to provide a schedule of records when records are being released to a requester.

Accordingly, the Council was asked to review the Applicant's original FOI request and to release all relevant documents again together with a schedule. This Office provided the Council with details of the additional e-mails which the Applicant had identified as not being released. Five (5) of these were e-mails to and from "rock road engineers". The Council subsequently, on 19 August, 2009, provided the Applicant with copies of all records, including the letter from the County Manager to the Garda Siochána and 10 of the 11 e-mails identified by the Applicant as not having been released previously. These included 5 e-mails which the Council had originally intended to release and 5 further e-mails to and from the "rock road engineers" account, which were found when the Council checked this e-mail account on 5 August, 2009.

The remaining e-mail, of the eleven(11) e-mails referred to above, which has not been found by the Council, is an e-mail from Senator Regan, an elected member of the Council, to one of the Applicant's neighbours. The Applicant has a copy of this e-mail, provided by his neighbour. The Council states that the Senator was no longer a member of the Council at the time of the Applicant's FOI request and his e-mail account was no longer in use. The Council further explained that:

"The Email Service for Councillors is outsourced to a Third Party. They provide a POP email account for Councillors which means they process and deliver emails to the Councillor's email account which is kept on the Councillor's own laptop. The Third Party do not keep the Councillors emails on their server."

The Applicant in his submissions to this Office in the course of the review has queried:

".. the circumstances under which pertinent records have been destroyed or mislaid."

I have found no evidence to suggest that relevant records were destroyed or mislaid. The only record which the Applicant can point to as not having been found and released is the e-mail from an elected member of the Council to one of his constituents, as referred to in the above paragraph. As has been explained, the Councillor was no longer a member of the Council at the time of the Applicant's FOI request and his e-mail account was dormant and could not be accessed by the Council.

The Council's position is that no further records relevant to the Applicant's request are held or can be found. I take the view that substantial resources have been expended on the investigation of this case within the Council and this Office. Having reviewed the records which have been released, the Council's searches and its responses to the investigator's queries and taking into account that the only record specifically identified by the Applicant as not having been released is one e-mail record which the Council says no longer exists and of which the Applicant holds a copy, I am satisfied that, in the circumstances of this case, the Council has now taken all reasonable steps to identify relevant records. I consider that the likelihood is that no further records exist in addition to those already provided to the Applicant. I am therefore satisfied that the Council is justified in relying on section10(1)(a) of the FOI Act and I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

18 February 2010