Whether the Authority was justified in refusing a request for a specified CPO map on the ground that it does not hold the record sought

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

The National Roads Authority has recently merged with the Railway Procurement Agency to form a new single entity called Transport Infrastructure Ireland, with effect from 1 August 2015. However, for clarity, I shall continue to refer to the public body as it was called at the time the applicant made his FOI request, i.e. the National Roads Authority.

The applicant submitted a request to the Authority on 2 April 2015 for access to a specified C.P.O. map. In its decision of 14 April 2015, the Authority refused the request on the ground that it does not hold a copy of the map. The Authority informed the applicant that the map may be held by Kildare County Council (the Council). It recommended that the applicant direct his enquiry to the Council and provided relevant contact details. The applicant sought an internal review of the Authority's decision and on 8 June 2015, the Authority issued its internal review decision in which it upheld the original decision to refuse access. It again referred the applicant to the Council. The applicant applied to this Office for a review of the Authority's decision on 12 June 2015.

During the course of this review Mr. Christopher Campbell of this Office informed the applicant of his view that the Authority was justified in refusing the request on the ground that it does not hold the record sought. The applicant has nevertheless indicated that he requires a formal decision on the matter. Accordingly, I consider that this review should be brought to a close by means of a formal binding decision.

In conducting this review I have had regard to the communications between this Office and both the applicant and the Authority and to the communications between the applicant and the Authority.

Preliminary Matters

Section 12(3) of the FOI Act provides that where an FOI body receives a request for a record that it does not hold but to its knowledge is held by another FOI body, it shall transfer the request to the other FOI body within two weeks and inform the applicant of having done so. I note that the Authority did not transfer the applicant's request to the Council in this case. It may be that the Authority could not state for certain that it knew the record to be held by the Council. Nevertheless, I note that it did inform the applicant that the Council may hold the map requested. In any event, it is clear that the applicant requires a determination on the Authority's claim that it does not hold the record

Scope of Review

This review is concerned solely with the question of whether the Authority was justified in its decision to refuse access to the CPO map sought on the ground that it does not hold a copy of the record.

Analysis and Findings

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 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).

In its submission to this Office, the Authority stated that the map concerned was prepared by the Council in the context of the N7 Castletown to Nenagh road improvement scheme. It stated that:

the acquisition of lands for national road schemes is normally carried out by the relevant local authorities who are the road authorities for their respective administrative areas in accordance with the provisions of the Roads Acts 1993 to 2015, while funding for the acquisition of lands acquired by local authorities for national road schemes is provided by the Authority, the preparation of all CPO documentation, maps, schedules, etc. is undertaken by the local authority concerned,
The N7 Castletown to Nenagh scheme was managed on behalf of South Tipperary and Laois County Councils by Kildare County Council's National Roads Design Office, Maudlins, Naas, Co. Kildare, and CPO documentation, maps, schedules, etc. for the scheme would therefore be held by the Council.

Having regard to the explanation provided by the Authority of its role in the CPO process and to the details provided in relation to the CPO process in question, I find that the Authority was justified in deciding to refuse the request under section 15(1)(a) of the FOI Act on the ground that it does not hold the record sought. I note that the Council has confirmed to the Authority that a request for access to the map should be made to that Office and the applicant may wish to consider availing of that option.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby affirm the decision of the Authority.

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