Case Number: 160082

Whether the Council was justified in refusing the applicant's request for records relating to various matters including the compulsory purchase of the applicant's land, a compensation claim against the Council and related legal proceedings

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 made a request to the Council on 14 December 2015 for records of all communications held by the Council relating to Jackson Way Properties Limited, including records in relation to its property, title, any covenant or burdens affecting or alleged to affect its land, claims for compensation and various related legal proceedings. On 18 January 2016, the Council refused the applicant's request under sections 29(1), 30(1)(c) and 31(1) of the FOI Act. It did not identify any relevant records or indicate if it was claiming the exemptions in relation to any specific information. The applicant sought an internal review of that decision on 21 January 2016.

The Council issued an internal review decision on 15 February 2016 affirming its original decision on the same grounds. On 15 February 2016, the applicant sought a review by this Office of the Council's decision. In conducting this review I have had regard to the communications between the Council and the applicant on the matter, and to the correspondence between this Office and both the Council and the applicant.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse the applicant's FOI request under sections 29(1), 30(1)(c), and 31(1) of the FOI Act.

Analysis and Findings

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council of satisfying this Office that its decision to refuse to release the records sought was justified.

Furthermore, where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). Given that the Council has been subject to the provisions of FOI legislation since 1998, I assume it is fully aware of its obligations under the FOI Act.

During the course of this review, Ms Sandra Murdiff of this Office contacted the Council and outlined her view that the Council's original and internal review decisions had not complied with the provisions of the FOI Act. She noted that the Council had not identified any relevant records, nor had it explained how the exemptions claimed applied to the records at issue, nor had it demonstrated that it had considered the public interest in favour of release in relation to sections 29(1) and 30(1)(c) of the Act. She invited the Council to make a submission in relation to her view.

In its response, the Council stated that the public interest was considered in its deliberations but that it considered that as the matter in question was currently before the Superior Courts, public interest would not favour release. It also stated that the files in question were the subject of ongoing and protracted legal proceedings between the Council and the applicant.

Given the nature of the request, which relates to matters that directly involve the applicant, I find it very difficult to accept that the Council holds no records coming within the scope of the request that cannot be released to the applicant under the FOI Act. It seems to me that the Council adopted a blanket approach to the request by claiming that the exemptions applied to all records coming within the scope of the request and did not conduct a record by record examination. It may well be the case that certain records are exempt from release on the basis of the exemptions cited. However, I am not satisfied that the Council has undertaken any substantial consideration of the content of the individual records as required by the FOI Act.

It appears that there may be a significant volume of records coming within the scope of the request and that this may have influenced the Council's handling of the request. Where large volumes of records are involved, it is open to a body to consider whether an administrative refusal under section 15(1)(c) might be appropriate. That section allows a body to refuse a request where it considers that granting the request would, by reason of the number or nature of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body. However, the Council did not chose to rely upon section 15(1)(c) in this case. In any event, it is important to note that a body cannot seek to refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused on those grounds.

I consider that it is not appropriate for the Commissioner to carry out the Council's role in assessing the records at issue in this case. Therefore, following careful consideration, it is my view that the decision of the Council should be annulled. The effect of this is that the Council is required to make a new, first instance decision on the applicants' original request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council in this case and direct the Council to conduct a new decision-making process on the 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