Whether the Council was justified in its decision to refuse access to records under section 46(2)(a) of the FOI Act, on the basis that the Act does not apply to records that are available for inspection by members of the public, and section 10(1(a) of the Act, on the basis that records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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

Background

On 3 January 2012, the Council received an FOI request from the applicant, in which he requested "...all records in relation to planning application 09/029, other than the records on the public planning file 09/029, in the Planning Section of Mayo County Council."The applicant elaborated in considerable detail on the range of information which was covered by his request. It was to include (and this is not the entirety of the request) "all documentation in Irish or in English, in any folder, sub-folder, mini-folder or any other form in either and inclusive of electronic or hardcopy form from all sections of Mayo County Council and all documentation from all 3rd parties to the authority furthermore to include all reports, by all grades including senior management and any sign off decisions by the County Manager, any Acting County Manager, planners and the Planning Enforcement Unit as well as all correspondence to and from the applicants ...".

The Council refused the request under the provisions of section 46(2)(a) of the FOI Act and explained that "the Act does not apply to records that are available for inspection by members of the public whether upon payment or free of charge". On 7 March 2012 the Council affirmed the original decision, following the applicant's request for an internal review. The applicant wrote to this Office on 4 September 2012 and requested a review of the decision of the Council.

I note that Mr. Edmund McDaid of this Office conveyed his preliminary views to the Council and the applicant on 6 June 2013 and invited both parties to comment. A response was received from both parties and I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to details of the submissions of the Council, to correspondence between the applicant and the Council and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Preliminary Matters

In its first submission to this Office, the Council stated that "no other records exist in relation to Planning Application 09/029 other than the records in the public planning file." However, the applicant explained that in his original request, he referred to "all records in relation to planning application 09/029"[my emphasis]. During the review by this Office, the applicant clarified this request as meaning that he sought access to records associated with planning retention, enforcement, fire certification and other records which he claimed were related to the planning application but which were not available on the public planning file. In a later submission, the applicant also provided a list of 15 specific records to which he sought access but which he contended, were not available to view on the public planning file. The Council's response to the list of 15 records was that either the records were available to view on the Council's website, or did not exist. In that response, the Council chose not to specify the provisions of the FOI Act on which it was relying. However, I have inferred that the Council relied on section 46(2)(a) and section 10(1)(a) of the FOI Act. The latter provision applies in a situation in which the records requested either do not exist or or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

I would also add that the process of reviewing this case was delayed considerably by both parties, who in certain instances did not reply in a timely manner to requests from this Office and, in other instances, requested extensions to the Office's response deadlines.

Scope of the Review

The issue in this review is whether the Council was justified, by reference to section 46(2)(a) and section 10(1)(a) of the FOI Act, in its decision to refuse the applicant's FOI request of 3 January 2012.

Analysis and Findings

The applicant's request reflects an assumption that there are many records, held or generated in several sections of the Council, which relate to the planning application 09/029. Clearly, the range of the request was broad and dealing with it could involve a considerable effort to identify relevant records and decide on their release. On the face of it, it was a reasonable assumption that the Council would hold records which, while relating to the planning application, would not form part of the planning file to which there is an existing legal right of inspection. If the Council was unclear as to what precisely the applicant was seeking in his request, or if it felt that the request was excessively voluminous, the correct action for it to take would have been to engage directly with the applicant either (a) to clarify what he was seeking or (b) to discuss the option to narrow the scope of the request so that it would not be excessively voluminous. In this regard, it is relevant to point to section 6(2)(a) of the FOI Act, which provides that it is the "duty" of a public body to give reasonable assistance to a person who is seeking a record under this Act. In this regard, no evidence was made available to this Office to indicate that the Council had made any attempt, at any stage of the request, to engage with the applicant in an effort to define more clearly the specific records at issue.

In conducting this review, this Office attempted to ascertain from the applicant a more precise list of the records at issue. To this end, the applicant provided a list of 15 records which he alleged were in existence and related to planning application 09/029 but which were not available on the public planning file. In a response to the list, the Council stated that of the 15 records, eight did not exist, five were available for inspection by members of the public, one did not relate to the planning application and one related to legal proceedings (to which the Council is not a party) where "it is possible that either of the parties to these legal proceedings may seek a Court Order compelling Mayo County Council to produce this document". However, as mentioned above, in its response the Council did not make specific reference to any section of the FOI Act on which it had relied when making its decision.

This Office then invited the Council to make a further submission and asked, in particular, that it address the existence of further records which the applicant believed should exist. This Office provided descriptions of certain records which the Council had previously stated did not exist but which the applicant had provided this Office with what he said were copies of those records at issue. This Office asked the Council that, in its reply, it should refer to the relevant section/s of the FOI Act, provide the Office with either a copy of an existing record, or a direct web link to the specific record, and where records did not exist, to address 'search' questions posed in the letter. Search questions are relevant to the investigation of a record where a public body relies on section 10(1)(a) of the Act. In this regard, the response of a public body to search questions can help establish to the satisfaction of the Commissioner whether the records do not exist, or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

In its response, the Council stated that it had "recovered" some of the records. However, as with previous submissions, the Council chose not to specify any provisions of the FOI Act on which it was relying, did not provide direct web links to specific records and did not respond to any of the search questions. Subsequently, the applicant provided this Office with additional material which, he claimed, proved that other relevant records were in existence but which the Council stated did not exist or were not part of the planning file.

In many respects, the Council's responses to requests by this Office for explanations and information were inadequate and unhelpful. Despite several attempts by this Office to ascertain from the Council the status of certain records, the Council chose not to provide specific details of these records. The Council chose also not to provide this Office with direct website links to the records which it stated were available to view on the public planning file, thus making it difficult for this Office to decide on the veracity of the Council's reliance on section 46(2)(a). Furthermore, the Council chose not to respond to the section 10(1)(a) 'search' questions. In relation to section 10(1)(a), it is important that public bodies understand that the onus is on the public body to satisfy the Commissioner that all reasonable steps have been taken to locate records and that, if the Commissioner is not satisfied, she will require further steps to be taken.

It is difficult to understand why, in its decision, the Council dealt only with records to which access was already available under planning legislation, when it was perfectly clear from the wording of the request that it was directed solely towards records which were not already accessible under planning legislation. This approach, quite inexplicably, was repeated by the Council when it conducted its internal review.

I note that in a previous decision (case 090192), made in 2010, the Information Commissioner stated:

"It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies.... Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions."

In addition, section 34(12) of the FOI Act provides that

'In a review under this section-

a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.'

I find that Mayo County Council has not shown to the satisfaction of this Office that its decision in respect of the applicant's request was justified. Indeed, it appears to be the case that the decision makers - both initially and at internal review - failed to address the request, as made, in any real sense.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of Mayo County Council in this case and direct that the Council now conduct a new decision-making process in relation to the applicant's FOI request which addresses the right of access to those records captured by the request, as made.

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.

Fintan Butler
Senior Investigator
24 July 2013