Case Number: 150318

Whether the Council was justified in its decision to refuse access to further correspondence between a named ecological consultancy company (the company) and the Council regarding the impact of the 2015 Marlay Park concerts on the park's bat population under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found

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

On 20 July 2015 the applicant submitted a four part request to the Council for records relating to the 2015 Marlay Park music concerts and their impact on the bat population in the park. On 17 August 2015, the Council part-granted the request. In pertinent part, it refused access to copies of all correspondence between the ecological consultancy company and the Council regarding the impact of the concerts on the bat population on the ground that the records concerned contained matter relating to the deliberative process.

On 24 August 2015, the applicant sought an internal review of that decision. The Council issued its internal review decision on 11 September 2015 wherein it decided to grant access to the correspondence sought. On 24 September 2015 the applicant sought a review by this Office of the Council's decision as he was not satisfied that all relevant correspondence had been released to him.

During the course of this review, the Council agreed to release a number of further records to the applicant. However, the applicant later indicated to this Office that he did not receive the records in question from the Council. This matter is therefore dealt with substantively below. I note that Mr Benjamin O'Gorman of this Office informed the applicant of the searches the Council conducted in attempting to locate relevant records and of his view that, apart from the four records already mentioned, the Council was justified in its decision to refuse to release any further relevant records on the ground that no records exist or can be found. The applicant indicated that he did not accept the explanations given by the Council as to why the records could not be found or did not exist. Therefore, I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council on the matter and to the contents of the records released to the applicant.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing to grant access to further correspondence between the company and the Council regarding the impact of the 2015 Marlay Park concerts on the park's bat population under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found.

Preliminary Matters

In submissions to this Office the applicant raised concerns about what he alleged to be a pattern of refusals by the Council in response to four FOI requests he had made, including the request that is the subject of this review. He also raised concerns about the manner in which his request was processed by the Council.

Any investigation of the Council's practices and procedures in relation to the processing of the requests made by the applicant would have to be carried out pursuant to section 44 of the FOI Act. The Commissioner has discretion to carry out such general investigations which are separate from reviews under section 22 of the FOI Act. All previous such investigations have involved more than one public body. There are a number of factors considered by this Office in deciding to whether to initiate an investigation and publish a report under section 44, such as the level of resources that would be required compared with those available at the time, whether the process and outcome are likely to be concerned with systematic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in practices and procedures across the public sector. While I am of the view that the Council should have taken greater care to ensure that all relevant records coming within the scope of the applicant's request were identified and considered for release in this case, I do not consider an investigation under section 44 to be warranted.

Analysis and Findings

The Four Records
In his submission to this Office, the applicant argued that the Council had failed to identify and consider a number of records relevant to his request. It appears that the Council did not properly consider whether certain attachments to the email correspondence which the Council released were within the scope of the applicant's request. Having examined the email correspondence Mr O'Gorman made further enquiries with the Council following which the Council provided this Office with copies of additional records it considered to be outside the scope of the applicant's FOI request. Mr O'Gorman considered that four of the records did, in fact, come within the scope of the review, and he informed the Council of his views on the matter. On foot of this, the Council indicated it would release three of the four records to the applicant administratively but that it wished to redact certain information from the fourth on the grounds of commercial sensitivity. However, as I have outlined above, the applicant subsequently informed this Office that he had not received any further records from the Council.

For the benefit of the applicant, I should explain that Mr O'Gorman considered that the other records identified did not come within the scope of his request. The records comprised two letters of objection relating to the Marlay Park concerts, a letter dated 12 June 2015 that the Council previously released to the applicant, site plans detailing the layout of the concerts and an email attachment which contained only the logo of the company. Having examined the records, I agree that they do not come within the scope of the applicant's request as they do not relate to the impact of the concerts on the park's bat population.

Having examined the remaining four records, I agree that they are captured by the scope of the applicant's request and, consequently, the scope of this review. Accordingly, I find that the Council was not justified in its decision to refuse the request under section 15(1)(a) of the Act in respect of these records. As the records have not been formally considered for release, I am satisfied that the appropriate course of action to take is to annul the Council's decision insofar as it applies to these four records, and to direct it to undertake a fresh decision making process.

For the sake of clarity, the four records are as follows:

1. Letter from the applicant to the Council dated 15 May 2015
2. Signed letter from the company to the Council dated 10 June 2015
3. Fee quote of the company dated 12 June 2015
4. Access Areas Map.

Further Relevant Records

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. 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 v 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 Council provided comprehensive details of the searches it undertook in an effort to locate further relevant records. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches. Therefore, while I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this decision.

In response to the search details provided by Mr O'Gorman, the applicant raised a number of queries about emails, text messages, and phone notes between the Council and the company. Mr O'Gorman sought further clarifications on these matters from the Council. In its reply, the Council stated that it held no records of any text messages or phone calls between its staff and the company. In relation to emails between the Council and the company, the Council stated that no further emails exist, and any emails previously deleted were subsequently recovered and released on foot of the applicant's request.

While the applicant is clearly not satisfied with the Council's responses, this review is limited to considering what records actually exist as opposed to those that the applicant believes should exist. Having reviewed the steps taken by the Council to locate the further records falling within point four of the applicant's request, I am satisfied that the Council has taken all reasonable steps to locate all relevant records and I find that it was justified in refusing access to additional records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. I affirm the Council's decision to refuse access to any further records sought by the applicant under section 15(1)(a) of the FOI Act, apart from the four records identified in this decision. I direct the Council to conduct a fresh decision making process in respect of those four records on the basis that those records come within the scope of the applicant's FOI request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator