Whether the Council was justified in its decision to refuse access to records relating to a complaint concerning a boundary fence at the applicant's property under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist

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 6 July 2015 for access to reports or objections in relation to a boundary fence at his property. The Council issued its decision in response to this request on 29 July 2015, stating that no records existed. The applicant sought an internal review of that decision on 20 August 2015. In its internal review decision, dated 10 September 2015, the Council upheld its original decision. The applicant applied to this Office for a review of that decision by letter dated 27 October 2015. 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 in refusing access to records sought by the applicant under section 15(1)(a) of the FOI Act on the ground that no relevant records exist.

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. 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. 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).

I should explain that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information as it does not oblige public bodies to create or compile information which does not exist.

Essentially, the Council's position is that its Engineer received a complaint by telephone regarding the applicant's boundary fence and that the Engineer did not create a record of that telephone call. In his submission to this Office, the applicant stated that when the Engineer visited his property, he quoted from a file he had with him. In response, the Council stated that the file held by Engineer related to a different matter and did not contain a record relating to the complaint regarding the boundary fence. In the absence of clear evidence to suggest otherwise, I accept the Council's statement on the matter. Therefore, I find that the Council was justified in deciding to refuse the request under section 15(1)(a) of the FOI Act.

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

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