Whether the Council was justified in refusing the applicant's request for a specified Compulsory Purchase Order (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 applicant submitted a request to the Council on 2 September 2015 for access to a specified CPO map. While the Council refused the request on 4 September 2015 under sections 15(1)(d) and 15(2) of the FOI Act on the ground that the map in question was already in the public domain as it was included in the N7 Castletown to Nenagh Compulsory Purchase Order, it nevertheless stated that Kildare National Roads Office had sent him a copy of the map outside of the FOI process that same day.

The applicant sought an internal review of the Council's decision and on 9 September 2015, and the Council issued its internal review decision on 11 September 2015 in which it affirmed the original decision.

The applicant wrote to this Office on 16 September 2015 seeking a review of the Council's decision. During the course of the review, the applicant contended that the map he received from the Council was not a copy of the original CPO map he sought. Following discussions with this Office, the Council located and released to the applicant a number of other related maps. It is the Council's position that it holds no further records relevant to the applicant's request. The applicant is still not satisfied that he has received the particular map he is seeking. I therefore consider that this review should now be bought to a close by issue 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 Council and to the communications between the applicant and the Council.

Scope of Review

This review is concerned solely with the question of whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to the CPO map sought by the applicant on the ground that the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Analysis and Findings

Section 15(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 FOI 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 FOI 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 FOI body, on the basis of which the FOI 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).

During the course of this review the Council contacted Laois County Council and examined the CPO Land Acquisition file held by Laois County Council to determine if any other maps existed relating to the applicant's request. Seven maps were found on that file and the issued copies of these maps to the applicant on 4 December 2015. The applicant contended that none of these were the maps he sought. With the assistance of Laois County Council, the Council then procured a copy of the CPO Land Acquisition file held by the solicitors for Laois County Council at the time of the CPO. This file contained four further maps which had not already been issued to the applicant and Kildare County Council copied and issued these maps to the applicant on 29 February 2016. The applicant is still not satisfied that any of these maps is a copy of the original CPO map issued to him with the inscription 'CPO Map Landowner's Copy'. However, the Council states that there are no further steps that it can take to locate the map sought.

At each point during this review Mr. Christopher Campbell of this Office conveyed details of the steps being taken to locate the map sought to the applicant, and Kildare County Council conveyed to the applicant the steps it had taken to search for the records when it twice issued to the applicant the further maps located during this review. While I do not propose to repeat all of these details here, I confirm that I have had regard to them for the purposes of this decision. It is the Council's position that it has supplied the applicant with all relevant maps which it has in its possession. While the applicant remains unsatisfied that he has not obtained the map he sought, I am satisfied that the Council has made all reasonable efforts to locate the map.

Accordingly, I find that the Council was justified in deciding to refuse the request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist or can not be found after all reasonable steps have been taken to ascertain its whereabouts.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator