Whether the Council was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records relating to the Louth Field Names Project on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

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

Background

The applicant submitted a request to the Council on the 24 February 2014 for:

"Any records Louth County Council including acting as library authority etc holds in relation to the Louth Field Names Project, referred to below as LFNP, including but not limited to:-

- the setting up of LFNP;
- the promotion of LFNP including but not limited to the preparation of handbooks, booklets, guides, leaflets, advertising, and expression of good will of Council members and including copies of such records i.e. handbooks etc.;
- the provision of staff, including of a temporary nature, to LFNP and if any offices either temporary or permanent were created for the purposes of, including assisting, LFNP;
- relating to the powers, duties, functions of members of staff (including temporary), appointed to the Louth Field Names Steering Group aka/and Project Group Members (as referred to on page 3 of Louth Field Name Research Handbook provided) in relation to LFNP;
- the provision of facilities including computer/IT to LFNP including any known decisions made to provide specific facilities/IT capabilities prior to the publication of the tender seeking a coordinator for LFNP i.e. 14 February 2013, and also prior to the final date for submission of the tender i.e. 22 March 2013. Page 3 of the Louth Field Name Research Handbook refers to help of Ms Helen Divilly of Louth County Council;
- reports, memos etc. from members of staff (including temporary) on the Louth Field Names Steering Group aka/and Project Group Members, to any of the Louth Local Authorities under your ambit, relating to LFNP including seeking and making decisions on tenders;
- relating to the provision of staff (including temporary), that had knowledge of the LFNP within the Louth Library Services, to the Age Friendly events held in Darver Castle on 7 October 2012 and 6 October 2013;
- policy, rules and guidelines of the Louth local authorities in relation to projects such as LFNP and bodies such as the Louth Field Names Steering Group in force at the time staff (including temporary) appointed to LFNP."

This request was revised in a telephone conversation between the applicant and the Council's FOI Officer. The last two paragraphs of the applicant's request were amended to:

- "Any person within the Louth Library Services appointed to work at the Age Friendly events held in Darver Castle on 7th October, 2012 and 6th October, 2013.
- Copy of Louth County Council's Section 15 and 16 Procedure Manual prepared in accordance with the Freedom of Information Act 1997-2003."

On 21 March 2014, the Council decided to grant the request in part. Four categories of records were released in full. Two categories were released in part. These categories contained various emails with the email addresses of third parties redacted on the basis that this was considered personal information and section 28 of the FOI Act applied. The Council refused any records relating to the applicant's request for records concerning any person within the Louth Library Services appointed to work at the Age Friendly events held in Darver Castle, under section 10(1)(a) of the FOI Act, on the grounds that any such records do not exist or cannot be found after all reasonable searches have been made. The Council further noted that the Act does not apply to the applicant's request for procedure manuals prepared under sections 15 and 16 of the FOI Act as this information is already in the public domain and accordingly section 46 of the FOI Act applied.

On 15 April 2014, the applicant sought an internal review of this decision as she was not satisfied that all relevant records had been released. On 6 May 2014, the Council issued an internal review decision affirming its original decision but providing clarification on points raised and some further documentation to the applicant. On 24 October 2014, the applicant sought a review by this Office of the Council's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Council and the applicant as set out above and also to communications between this Office and the applicant, as well as to communications between this Office and the Council. Finally, I have had regard 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 and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The Council has confirmed that the records redacting the email addresses can now be released and it is not disputed that the section 15 and 16 manuals are publicly available so they do not come within scope by virtue of section 46.

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

Analysis and Findings

Section 10(1)(a) of the FOI Act 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,"

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.

The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".

The applicant has stated that there must be more records than those already provided. She is of the view that, as the Council supported this project and loaned staff to assist in its implementation, then appropriate authorisations must have been sought to do so, including appropriate financial authorisations, and that there must therefore be further records available. She contended that if there are no more records then the Council have failed in its function as a public body to keep proper records.

I should explain that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought. In other words, the Act does not provide for a right of access to records which, arguably, ought to exist. While on occasion a public body may decide to create or compile information, this is beyond what is required by the FOI Act and the Information Commissioner has no power to require a public body to do so. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

The Council's position is that the project was an independently commissioned project which originated with the County Louth Archaeological Society but with which a number of staff had involvement, either as a result of general interest or expertise. The Council noted that some assistance was given by staff on personal time as a voluntary contribution.

The FOI Act does not provide for a right of access to the records of a third party which is outside the control of a public body. The Council has stated that the Louth Field Names Project is not a public body as defined by the FOI Act. The applicant does not dispute this and I accept that the Louth Field Names Project does not come within the scope of the Act. This means that any records held by the Council are covered by FOI legislation but there is no obligation to seek records directly from the Louth Field Names Project. I accept that the Louth Field Names Project was an independently commissioned project. I also accept that, while the Council gave its support to the project, it did not provide any direct financial contribution to the project and staff were involved as part of their normal duties.

In its submission to this Office, dated 10 February 2015, the Council provided details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request. It requested all staff to review their files to establish if any records existed and carried out a corporate email search in order to determine if there were any further email records.

Having regard to the Council's submissions and the number of records that have already been made available to the applicant, I am satisfied that all reasonable steps have been taken to search for any further records relevant to the applicant's request. Accordingly, I find that section 10(1)(a) of the FOI 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 access to further records under the provisions of section 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