Whether the Council was justified in its decision to refuse the applicant access to further records relating to a specified planning application on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator

Background

On 19 December 2011, the applicant submitted a request to the Council for all records in relation to a specified planning application other than the records on the planning file in the planning section of the Council. He went on to list, in some detail, the types of records he was seeking. As the applicant was not satisfied with the Council's response to his request, he applied to this office for a review of the Council's decision. Having conducted the review, this Office annulled the decision of the Council on 24 July 2013 and directed it to make a fresh decision on the request.

The Council subsequently issued a fresh decision on 6 September 2013, granting access to a number of records and stating that certain other records sought by the applicant do not exist. The applicant applied for an internal review on 16 September 2013. The Council issued its internal review decision on 7 February 2014 wherein it stated that all records in relation to the applicant's request had been released. The applicant was not satisfied with this response and applied to this Office for a review of the Council's decision on 27 February 2014.

During the course of this review the applicant contended that the Council was withholding records that should have been released in response his request and stated that he held copies of other records which demonstrated this. I note that Mr. Christopher Campbell of this Office requested the applicant to include all information pertinent to his request in a submission to this Office. The applicant's submission was received on 20 June 2014. Following further contact with Mr. Campbell on the matter, the applicant provided further details by email, on 7 July 2014. In his submissions the applicant identified certain records that he contended were being withheld by the Council.

Following correspondence with this Office, the Council subsequently agreed to administratively release further records to the applicant which it deemed were not within the scope of the applicant's original FOI request. Those records were sent to the applicant and copied to this Office on 29 October 2014. The applicant indicated his dissatisfaction with the response of the Council but offered no further information or comment as to how he considered it to be inadequate. It is the position of the Council that it holds no further records in relation to the applicant's request.

Having considered the submissions of the applicant, and of the Council, and all available information, it is my view that this 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 decisions of the Council on this request and its communications with this Office, to the communications and submissions of the applicant with this Office, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The Council's position is that it hold no further records relating to the applicant's request. Therefore, this review is concerned solely with the question of whether the Council was justified in its decision to refuse access to further records coming within the scope of the request under section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 10(1)(a) of the FOI Act provides for the refusal of a request where the record sought 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. 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 that a requester believes are in existence. The Office's understanding of its 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 Office's website,www.oic.ie).

As referred to above, the applicant made submissions specifying documents that he considered had been withheld by the Council. In particular he referred to correspondence to and from named Council officials, a copy of a Council planning report, and correspondence between the Council and two named TDs who made representations to the Council on behalf of the applicant.

The Council released a number of records to the applicant on 29 October 2014. This administrative release included the planning report the applicant had referred to on numerous occasions in his submissions, which was in fact a planning report on a different planning application and so fell outside the scope of this request. The Council also released further letters which it considered fell outside the scope of the applicant's request in the interest of addressing the request as fully as possible. Some of the records sought by the applicant could not be located and details of the searches carried out to locate these records were provided by Mr Campbell to the applicant. While I do not propose to repeat those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

As mentioned above, the applicant did not offer further information or comment as to the possible location or existence of further records that had either not been addressed in the Council's submissions or not already released to the applicant during the course of this review. However, he did provide this Office with copies of some records which are captured by the scope of his request but which the Council state cannot be found after conducting extensive searches. The records in question comprise correspondence, including an acknowledgement letter, between the Council and the applicant, and one between the Council and John O'Mahony TD. The Long Title of the Act states that the purpose of the FOI Act is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies. In my view, it is not reasonable for a user of FOI to expect a public body to conduct exhaustive searches for records already in his/her possession.

Nevertheless, the fact that the applicant has copies of relevant records that the Council would be expected to hold demonstrates that certain records do, or did at some stage, exist that have not been released and it raises the possibility that other relevant records might exist. The question I must consider, therefore, is whether the Council has demonstrated to my satisfaction that it has taken all reasonable steps to ascertain the whereabouts of such records. The Council has detailed the searches it has undertaken to address this request as fully as possible. While the fact that a certain small number of records have not been found may suggest less than satisfactory record keeping practices by the Council, this does not diminish my view that the Council has taken all reasonable steps to ascertain the whereabouts of the records requested. It remains that some records have not been located, but I do not consider it reasonable, or in line with the intention of the Act, to require the Council to conduct further searches for records which the applicant already has in his possession. Indeed, the Act acknowledges that situations may arise where records held by a public body simply cannot be found.

Accordingly, I am satisfied at this point that the Council has taken all reasonable steps to ascertain the whereabouts of the records sought by the applicant. Insofar as the applicant contends that further records should exist and be released, I am satisfied that these records either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken and I find that the Council was justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.

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 the Council.

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