Whether the Council was justified in refusing to release additional relevant records relating to specified legal proceedings on the ground that no further relevant records are held by it

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

Background

This review has its background in legal proceedings taken by the Council against the applicants that culminated in an order of the Circuit Court dated 14 July 2005 allowing the Council's appeal. The order indicates that the Court consented to the Council recovering its costs and expenses of the appeal from the applicants. The applicants have applied to this Office for a review of decisions taken by the Council in respect of two related FOI requests, details of which are as follows:

Case 150125
The applicants submitted a request to the Council on 20 November 2014 for copies of the documents authorising the Council to collect outstanding legal fees. Following the Council's decision to release certain records, the applicants submitted a fresh request on 5 January 2015 for "District Court details and judgements of [the applicants] v Limerick County Council from your legal files". In that letter, the applicants made specific reference to the date of 14 July 2005, the date of the Circuit Court order. The Council refused that request on the ground that it had provided all relevant information on foot of the first request. It further stated that it did not hold an actual copy of the judgment on file.

On 20 January 2015 the applicants applied for an internal review of that decision. In their letter, they stated that they were not looking for references to the judgment but rather, were seeking the original court documents from the Circuit Court dated 14 July 2005. In its internal review decision dated 9 February 2015, while the Council indicated that it was upholding the original decision, it provided a copy of the judgment in question that it had procured from the solicitors who had acted for the Council at the time. The applicants applied to this Office for a review of the Council's decision on 24 April 2015.

Case 150213
On 13 May 2015 the applicants submitted a request for a "copy of Court Order for Circuit Court Limerick dated 14th July 2005 showing case number judgement and amount of costs awarded". By letter dated 12 June 2015, the Council refused the applicants' request under section 15(1)(a) on the ground that the record, as requested, does not exist. It referred to the fact that it had already released a copy of the Circuit Court order and noted that the amount of the costs awarded is not listed on the record.

On 15 June 2015 the applicants applied for an internal review of the Council's decision. By letter dated 6 July 2015, the Council issued an internal review decision affirming its original decision. It noted that the Circuit Court order previously released does not quantify the costs involved and it referred to the detailed breakdown of costs that had been released on foot of the request made on 20 November 2014. The applicants applied to this Office for a review of the Council's decision on 10 July 2015.

During the course of the review, Mr Benjamin O'Gorman of this Office contacted the applicants and informed them of the searches undertaken by the Council for further relevant records relating to their requests. Mr O'Gorman outlined his view that both of the applicants' requests had been satisfied by the release of the Circuit Court judgement on 9 February 2015. The applicants indicated that they wished to proceed to a decision. I therefore 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 Council's decisions on the matter, to the Council's communications with the applicants and with this Office and to the applicants' communications with the Council and with this Office.

Scope of the Review

The scope of this review is confined to the question of whether the Council was justified in refusing to release additional relevant records on the ground that no further relevant records are held by it.

Preliminary Matters

Before I address the substantive issue in this case, I would like to make a number of preliminary points. First, while both requests were processed by the Council in accordance with the provisions of the FOI Act 2014, the Council incorrectly cited a related provision of the FOI Acts 1997 & 2003 in its correspondence with the applicants. In its original decision of 16 January 2015, the Council relied on "section 10(1) of the Freedom of Information Acts" in refusing the request. It is clear to me that the Council intended to rely upon section 15(1)(a) of the 2014 Act which is essentially the same as section 10(1)(a) of the FOI Acts 1997 & 2003.

Secondly, it is important to first note that this Office has no role in examining the manner in which the Council sought to recover its costs or in how it calculated those costs. Moreover, section 13(4) of the FOI Act specifically prohibits a decision maker, subject to the provisions of the Act, from having regard to any reason the applicants may have for making the request for access.

Analysis and Findings

In a submission to this Office, the Council explained that a case it took against the applicants was dismissed by the District Court on 22 June 2004. The Council stated that it appealed the case to the Circuit Court and that the Circuit Court allowed the appeal and the costs of the appeal were awarded to the Council to be taxed in default of agreement. It seems to me that the applicants are essentially seeking to challenge the Council's authority to seek to recover costs in excess of €5,000 in respect of the Circuit Court hearing of 14 July 2005. It is clear from the original request submitted to the Council on 20 November 2014 that they are seeking records that support the Council's entitlement to do so. While the applicants referred to the District Court proceedings in their request of 5 January, they clarified in their request for internal review that they were seeking the original Court documents from the Circuit Court dated 14 July 2005.

In their subsequent request of 13 May 2015, the applicants again sought a copy of the Circuit Court order dated 14th July 2005. In making that request they appear to have been of the opinion that any such order would show a case number, details of the judgement and the amount of costs awarded. The Council has already released a copy of the Circuit Court order in question. I note that it contains a record number and details of the order made. While it does not contain details of the amount of costs the Council would be entitled to recover, I am informed that this is not unusual. In a telephone conversation with Mr O'Gorman of this Office, one of the applicants suggested that the document the Council released was not genuine. He has provided no evidence to support this contention other than to suggest that the costs claimed by the Council had risen substantially. Accordingly, I have no reason to believe that the record in question is not genuine.

It seems to me, therefore, that the only remaining issue for me to consider is whether the Council holds any other records, being orders of the Circuit Court dated 14 July 2015 that might contain the details identified by the applicants. 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.

The position of the Council is that there are no further records relevant to the applicants' FOI request. While the applicants may not be satisfied with this position, they have provided no supporting evidence that other records do indeed exist. Accordingly, I find that the Council was justified in its refusal to release further relevant records under section 15(1)(a) of the FOI Act on the ground that no such records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator