Case Number: 160126

Whether the Council was justified in refusing to release further records containing raw data relating to wind farm sound testing on the basis that they no longer 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

On 6 January 2016, the applicants sought copies of raw data relating to sound testing carried out in connection with a wind farm in Waterford on specific dates by two private companies (Company A and Company B) on the Council's behalf. In its decision of 3 February 2016, the Council refused access to records relating to testing carried out by Company A on the ground that the Council did not hold such data. It released information relating to the data collected by Company B which it stated to be publicly available.

On 4 February the applicants sought an internal review of the Council's decision to refuse records held by Company A. The Council affirmed its original decision on the same grounds. The applicants sought a review by this Office of the Council's decision on 21 March 2016.

During the course of the review, Ms Sandra Murdiff of this Office contacted the Council and outlined her view that the records held by Company A should be considered for release as it had been acting as a service provider under contract to the Council. The Council accepted this and released records in spreadsheet format to the applicants which Company A provided. The applicants were not satisfied with the information released as they had specifically sought the raw data collected. The Council subsequently released records in .svn format to the applicants in two tranches. The applicants sought further raw data relating to wind direction but the service provider indicated that the original data had been deleted when it was downloaded from the equipment used. The applicants were not satisfied with this explanation. Accordingly I consider that this review should now be brought to a close by way of a formal, binding 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 solely concerned with whether the Council was justified in refusing to release further records relating to wind direction to the applicants on the basis that no additional records exist or can be found following reasonable steps to ascertain their whereabouts.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record 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. 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 it has taken all reasonable steps to locate the relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

It should be noted that this Office may conclude that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. The Act does not require a public body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.

It is the Council's contention that the raw data concerning wind direction no longer exist. During the course of the review, the service provider informed the Council that the wind direction data was collected by different equipment than the raw data already released to the applicants. It stated that the equipment used does not have memory storage and that the logger was reset for further testing after the data in question was uploaded to Excel. It suggested that the data from the wind turbines could be used and that this information was contained in the data in the Excel files previously released.

The applicants stated that they do not accept the explanation provided by the service provider and they suggested that further information should be sought from the service provider such as the make and model of the equipment used and the storage capability of said equipment. The applicants also argued that the service provider's membership of the Institute of Acoustics obliged him to retain files in their original format to allow for independent scrutiny.

While it is unfortunate that all of the information held by the service provider was not released from the outset, I am satisfied that the Council acted in good faith once it realised that information held by the service provider was also subject to release. The piecemeal release of information was more due to a misunderstanding as to the nature of the format in which the information was held. However, it seems to me that all relevant information held by the service provider has now been released. While the applicants may not accept the service provider's explanation as to why it does not hold information relating to wind direction in the format sought, I have no reason to doubt that explanation. I do not accept that it is necessary to seek additional information in an attempt to provide the veracity of that explanation.

Furthermore, this review is not concerned with the question of whether or not the information sought ought to exist. Rather, the question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of records containing the information sought and in the format sought. In the particular circumstances of this case, I find that the Council was justified in refusing to release further records to the applicants on the basis that the raw data sought relating to wind direction no longer exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision in this case.

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