Whether the refusal of access to records by the Council is justified under section 30(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 27 November 2014 the applicant made an FOI request to the Council for full details of certain matters which were referred to in a court submission. By letter dated 23 December 2014, the Council refused access to the records on the basis that they were exempt from release under section 30(1)(a) of the FOI Act. On 6 January 2015 the applicant applied for an internal review. By letter dated 26 January 2015, the Council issued its internal review decision, in which it affirmed its original decision. The applicant applied to this Office for a review of the Council's decision on 5 February 2015.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; and to the provisions of the FOI Act.

Preliminary Matters

I would like to outline what has been a very unsatisfactory chronology of events. As noted above, the Council originally refused the records on the ground that they were exempt from release under section 30(1)(a) of the FOI Act. However, when this Office requested copies of the records, the Council informed this Office that the only relevant record was the court submission itself, to which the applicant already has access. This Office then issued a series of questions to the Council to ascertain whether the records which the applicant sought existed and whether the Council had taken reasonable steps to ascertain their whereabouts. Through these and subsequent questions, it transpired that the records which the applicant sought did exist. The Council informed this Office that the records were contained on the applicant's personnel file and had previously been provided to him. The applicant confirmed to this Office that the Council had released all of those records to him apart from one, which the Council subsequently released. This Office then requested the Council to confirm that no further records existed in relation to this FOI request, in addition to those already released. The Council confirmed that this was the case.

It is clear from this outline of events that the Council did not respond appropriately to the applicant's FOI request. Its refusal on the basis of section 30(1)(a) of the FOI Act gave the applicant the impression that certain records were being withheld. It was only on undertaking its review that this Office ascertained that the relevant records had already been provided to the applicant (other than the one record which the Council released to the applicant in the course of this Office's review). This Office asked the Council for a full written explanation of the discrepancy in this sequence of events but did not obtain a satisfactory explanation.

Finally, I note from the file that the applicant has very strong feelings in relation to the manner in which the Council has conducted itself in its dealings with him. However, I must emphasise that the scope of this Office's review is the Council's decision on the applicant's FOI request, and not the surrounding circumstances.

Analysis and Findings

In view of the events outlined above, this review is now solely concerned with the question of whether the decision to refuse access to the records requested is justified under section 15 of the FOI Act. Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Section 15(1)(i)(i) of the FOI Act provides for the refusal of a request where the records have already been released to the requester and are available to the requester.

Following its review, this Office is now satisfied that the records in relation to this FOI request have been disclosed to the applicant. I should note that in the course of a telephone conversation with Ms Jo Kenny, Investigator in this Office, the applicant's sister referred to a matter in relation to this FOI request in respect of which she believed that there must exist a record. Ms Kenny wrote to the applicant to request some detail of that incident, in order to enable this Office to contact the Council to ascertain whether such a record existed. However, the applicant did not provide this Office with any such detail. The position of the Council is that there are no further records relevant to the applicant's FOI request. While the applicant may not be satisfied with this position, he has provided no supporting evidence that other records do indeed exist. This Office is not required to search for records and its understanding of its role in this type of case was approved by the High Court in Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A.), which is available on this Office's website www.oic.ie.

Accordingly, I find that the Council's refusal of access is justified under section 15(1)(i)(i), on the basis that the records have been provided to the applicant. To the extent that the applicant claims that there exist any further records, I find that the Council's refusal of access is justified under section 15(1)(a), on the basis that they do not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council and find that the Council is justified in refusing to grant the request under section 15(1)(a) and section 15(1)(i)(i) 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator