The Senior Investigator found that the Council is justified in its decision to refuse access to the records on the basis of sections 6 and 10(1)(a) of the FOI Acts. She affirmed the decision of the Council.

Case Summary

Whether the Council is justified in its decision to refuse access to records concerning Blackrock Park on the basis that the records are exempt from release under various sections of the FOI Act.

Date of Decision: 31.12.2010

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

Background:

On 12 December 2008, the Applicant requested access to the following records concerning Blackrock Park:

1) Past and Present Copies of all freehold titles, leases, conveyances and other records of intent, agreements or contractual, with regard to all the lands in Blackrock Park.

2) All records of the selling of land that belonged to Blackrock Park, by Dun Laoghaire Rathdown Co. Council. This includes any area that surrounds Kinsella Garage in Blackrock Park.

3) All records of Land Title Surveys done by Dun Laoghaire Rathdown Co. Council done to establish Ownership and Rights to use the land, in Blackrock Park.

4) Records of All Correspondence between Dun Laoghaire Rathdown Co. Council and, or on behalf of, The Earl of Pembroke since 1850.

On 23 January 2009, the Council granted access to records with the exception of portions of the records which it refused on the basis of sections 28 and 26 of the FOI Act. The Applicant was invited to view the records and identify the records that he required to be photocopied as some of them were in poor condition. On payment of the fee, the Council said it would endeavour to supply the copies required. The Applicant wrote to the Council on 30 January 2009 identifying the records he wished to have photocopied and enclosed the photocopying fee. He also requested computer scans of the Titles, Deeds, Conveyances, Leases Assignments and Agreements that are relevant to his FOI request as he said that photocopies would be "of differing quality ranging from good to quite illegible." He requested that these records "be scanned and saved in a image file format document preferably saved as a high resolution JPG or a Bitmap." The Council wrote to the Applicant on 6 February 2009 granting access by photocopy to 126 records and stated that it had granted access by inspection to over 600 records in total some of which are in poor and aged condition following several discussions with him about the most appropriate manner of access. It refused to provide copes of additional records as it was the Council's view that they are unlikely to copy clearly and it felt that the Applicant had been given a reasonable opportunity to inspect these records. On 13 February 2009, the Applicant requested an internal review of the Council's decision which was upheld by the Council on 3 March 2009. The Applicant wrote to this Office on 30 July 2009 seeking a review of the Council's decision.

I note that Ms Alison McCulloch, Investigator in this Office, wrote to the Applicant on 10 November 2010 outlining her preliminary views on the case and that the Applicant responded to those views on 19 November 2010. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the Council as well as those of the Applicant (including those he made to the Council). I have also had regard to additional information and clarification provided by the Council at the request of this Office and to the provisions of the FOI Acts.

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

This review is concerned solely with the question of whether the Council is justified in its decision to refuse access by computer scan image of the records which are "old and in aged condition", records concerning the selling of land by the Council that belonged to Blackrock Park and additional records showing rent that was due or rent that was paid to the Earl of Pembroke on foot of a lease agreed in 1850.

Submissions

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Findings

Preliminary Matters

In his application to this Office, the Applicant said that he is seeking access to records showing rent that was due or rent that was paid to the Earl of Pembroke on foot of a lease agreed in 1850. He also requested access to records concerning the selling of land by the Council that belonged to Blackrock Park. Following communications between this Office and the Council, it released additional records to the applicant in November and December 2010. Therefore, this review concerns the refusal of access by computer scan image of the records which are "old and in aged condition", records concerning the selling of land by the Council that belonged to Blackrock Park and additional records showing rent that was due or rent that was paid to the Earl of Pembroke on foot of a lease agreed in 1850.

Pre-Commencement Records

The Applicant requested computer scans of Titles, Deeds, Conveyances, Leases Assignments and Agreements as the records were old and therefore did not photocopy well. The records were created prior to the FOI Act 1997. Under section 6 of the FOI Act, the Council is not obliged to give access to records created before the commencement of the Act. Therefore, the Applicant does not have a right of access to records created before 21 October 1998. An exception to this is section 6(5) of the FOI Act. This section states that access may be given in two circumstances:

• where it is "necessary or expedient" to understand records created after 21 October, 1999 (s.6(5)(a)),or
• where the information is personal information as defined in the FOI Act (s.6(5)(b)).

Section 6(5)(b)

A right of access to pre-commencement records exists where those records relate to personal information, as defined in the FOI Act, about the requester. It does not appear that the records in question relate to the Applicant's personal information.

Section 6(5)(a)

The level of proof required by the Information Commissioner regarding section 6(5)(a) is very high. She can only order release of records where the Act so provides. It would be necessary for the Applicant to point to a particular document/record and show why he could not understand it without another, earlier, document.

This Office has already dealt with the application of section 6(5)(a) in a number of published decisions, principally Case Number 98117 (Mr. ABE and the Department of the Marine and Natural Resources) and Case Number 98169 (Mrs. ABY and the Department of Education and Science).   For the purposes of this present review, I adopt the approach set out in them. These decisions set out a clear approach to interpreting the phrase "necessary or expedient in order to understand ...". I take the view that this provision is directed, not at the question of whether a record can be understood, in a literal sense, without reference to earlier records, but at whether its substance (or gist or subject matter) can be understood. These decisions make it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood. In these decisions, the word "expedient" is defined as "fit, proper or suitable to the circumstances of the case". In these two decisions, this Office concluded that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record.

In her preliminary views letter, Ms McCulloch invited the Applicant to point to a particular document/record and show why he could not understand it without another, earlier, document. The Applicant did not address this issue in his reply of 19 November 2010. On the face of it, the right of access to pre-commencement records does not arise under section 6(5)(a) of the FOI Act. Therefore, I find that the records do not fall to be released under section 6 of the FOI Acts as they were created prior to 21 October 1998.

Section 10(1)(a)

The Council relied on section 10(1)(a) of the FOI Act to refuse access to records concerning the selling of land by the Council that belonged to Blackrock Park and additional records showing rent that was due or rent that was paid to the Earl of Pembroke on foot of a lease agreed in 1850. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified.  This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) According to the Council,

• Manual and electronic searches for the records were carried out by senior members of staff within the Parks Department and the Property Management sections of the Council.
• staff undertook comprehensive searches of the Council databases which are the key component of its records management system, which logs details of correspondence etc.,
• staff also conducted searches of computer files and folders.

In order to assist the applicant, the Council provided a full schedule of financial management records relating to Pembroke Estates Management Ltd. in the matter of the lease of the Peoples Park, Blackrock from 1998 to the present day.  The Council contend that a thorough search was undertaken in relation to records concerning the selling of land around Kinsella's Garage and that no further records exist.  It also said that "no sale of land has taken place in Blackrock Park at any time up until the 12th December 2008".

It may well be the case that records ought to have been retained by the Council; however, unless those records are now extant, their release under the FOI Act cannot be secured. Given the responses of the Council to this Office's queries, I am of the opinion that the Council has carried out an adequate search in relation to these records. In summary, my view is that the Council is justified in its conclusion that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find accordingly that section 10(1)(a) of the Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the part of the request under review in accordance with sections 6 and 10(1)(a) of the FOI Act.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

31 December 2010