Case 110203

The Senior Investigator found that the Council is justified in its decision to refuse access to the records sought in accordance with the provisions of section 10(1)(a) of the FOI Act. He affirmed the decision of the Council.

Case Summary

Whether the Council is justified in its decision to refuse a request for access to records under section 7 of the FOI Act on the basis that section 10 (1)(a) of the FOI Act applies.

Date of Decision: 08.06.2012

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

Background:

On 16 May 2011, the applicant made a request to Donegal County Council under section 7 of the FOI Act for access to all of his late mother's and father's records, all records/information about himself and his wife in relation to the Council and also all records relating to "a local committee" which was involved in the decision to allocate a house to his late father.  On 3 June 2011, the Council released housing records in relation to the applicant's late father and confirmed that the Council's Housing Section did not have any records in relation to either the applicant or his wife.  The applicant requested an internal review in relation to the records of his late parents on 21 June 2011.  On  14 July 2011, the Council wrote to the applicant to clarify issues which he had raised and decided to uphold the original decision on the applicant's request.  The applicant applied to this Office on 26 October 2011 for a review of the Council's decision.

I note that Ms Rachel Dunn, Investigator, wrote to the applicant on 27 April 2012 informing him of her preliminary view that the decision of the Council was justified in this case.  As the applicant did not accept Ms Dunn's preliminary views, 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 provisions of the FOI Acts, to the submissions of the applicant (including those made to both the Council and this Office), and to those of the Council. 

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

Scope of Review

The scope of this review is concerned solely with the question of whether or not the Council is justified, in terms of the provisions of the FOI Act, in its decision to refuse the applicant's request on the grounds that no additional records, apart from those already released, exist or can be found.

Submissions

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Findings

Preliminary Matters

The applicant, in his submission dated 14 May 2012, asked this Office to seek access, through the Council, to any records held by the voluntary housing body (St Vincent de Paul) which allocated housing to the applicant's late father in this case.  While the Council released certain records relating to its dealings with St. Vincent de Paul on the matter, it explained that the decision to allocate the house was taken by St. Vincent de Paul.  The applicant argues that the Council acts as an intermediary between the voluntary body and the Department of the Environment, Community and Local Government which funds the Voluntary Housing Schemes and as such, he considers that the Council are required to maintain adequate records regarding the scheme and the allocation of such housing. 

Voluntary housing bodies provide rental housing for people who could not otherwise afford to provide suitable accommodation from their own resources. The voluntary housing bodies decide on the types of housing projects/services they will provide, having regard to local needs, and are responsible for tenancy allocations in consultation with the local authorities. They are not-for-profit organisations concerned with the relief of housing needs, and usually take the legal form of housing associations. Such bodies must be approved by the Department of the Environment, Community and Local Government in order to qualify for financial and other aids to provide housing.

As I understand the Capital Assistance Scheme, decisions on housing allocations are made by the approved housing body (St. Vincent de Paul in this case) in consultation with the local authority (the Council).  The Council's role in such cases is to determine that the prospective applicant is on the Council's housing waiting list and in need of housing.  The Council has not, as the applicant suggests, subcontracted or delegated its administrative duties in terms of allocating housing to the voluntary body.  Accordingly, I am satisfied that that any records that might be held by St. Vincent de Paul concerning the decision to allocate housing to the applicant's late father cannot be deemed to be held by, or under the control of, the Council, nor does the Commissioner have the power to seek access to any such records.

Analysis and Findings

Section 10(1)(a)

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 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 records was 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. available on this Offices website at www.oic.ie).

Ms Dunn, in her letter dated 27th April 2012, provided the applicant with the details provided by the Council in relation to the comprehensive searches which were conducted by the Council to locate relevant records and, while I do not intend to repeat those details here, they are relevant for the purposes of this decision.  In implementing the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to a record which ought to exist and the Commissioner does not have the authority to require a public body to create a record where such a record does not exist or is not held by it.

The position of the Council is that all relevant records have been released to the applicant - this amounts to a refusal of the request by reference to section 10(1)(a) of the FOI Act.  The Council has confirmed on a number of occasions that, apart from the records which have already been released to the applicant, it holds no further records appropriate to his FOI request.  While the applicant has expressed a number of concerns arising from his examination of the records released, he has not provided any further details to suggest that additional records might exist.  Accordingly, having reviewed the steps taken by the Council to locate all relevant records, I am satisfied that it is reasonable to conclude that the Council has taken all reasonable steps to locate all relevant records coming within the scope of the applicant's request and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Donegal County 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 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.   

Stephen Rafferty

Senior Investigator

08 June 2012