Case Number: 170056

Whether the Council was justified in deciding to refuse access to records relating to a submission made regarding a planning permission application under section 15(1)(a) on the ground that they do not exist or cannot be found

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to Clare County Council on 29 November 2016 for records relating to a submission made regarding a planning permission application. On 21 December 2016, the Council informed the applicant that it was refusing his request under section 15(1)(d) and section 15(2) of the FOI Act, on the basis that the records requested were already in the public domain and available for inspection by members of the public. According to the Council, the submission record and anything that would be related to it was available in a named planning file.

On 4 January 2017, the applicant sought an internal review of that decision. On 24 January 2017, the Council affirmed its original decision on the same grounds. It also referenced two other specific planning files, which it stated contained the submission sought.

On 1 February 2017, the applicant sought a review by this Office of the Council's decision. In his submission, the applicant explained that he sought a review in particular on the grounds that, having inspected the planning file, the original record was not available in the public domain as stated by the Council and that none of the records requested were available for view in the relevant planning files. He further said that he received a copy of the record indicating when it was actually received by the Council.

During the course of this review, Ms Jessica McCrory of this Office contacted the Council and outlined her view that section 15(1)(a) of the FOI Act applied, and invited it to provide details of the steps taken to locate relevant records in this case. She also drew the Council's attention to the fact that the submission sought was not contained in any of the planning files referred to in its original and internal review decisions.

The Council provided this Office with information regarding its record management policy and the searches conducted to locate the records sought by the applicant. Ms McCrory provided the applicant with details of those searches by email on 3 May 2017. She also informed the applicant of her view that the Council was justified in deciding that the records sought did not exist or could not be found once all reasonable steps had been taken to ascertain their whereabouts. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the 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.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse the applicant's request for records relating to a submission made regarding a planning permission application, on the basis of section 15(1)(a) of the FOI Act.

Analysis and Findings

While the Council relied on sections 15(1)(d) and 15(2) in its decisions, the applicant argued that the records sought were not publicly available. The Council said that it had assumed that the record was where it ought to be on the named planning file, along with any related records. During the course of this review the Council acknowledged that it should have also considered section 15(1)(a) when making its decision on the applicant's FOI request.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records 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 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 decision maker concluded that the steps taken to search for records were reasonable. This Office does not normally search for records.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. The Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

In a submission to this Office, the Council provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details. I therefore do not propose to set these out in full.

In summary, the Council stated that while the current policy is that all incoming documentation must be scanned before being placed on the hardcopy file, the record(s) sought pre-dates the commencement of this procedure.

The Council also stated that it conducted extensive searches (both manual and digital) in a number of locations. It further stated that it contacted the relevant service providers, current and former staff in an attempt to locate the original submission document and/or any related records, but the records sought were not located.

The Council therefore stated that the original submission document and any related records could not be located.

While it is unfortunate that the Council cannot locate the records sought, I am satisfied, having regard to the details of the searches conducted as outlined above, and the responses received to the Investigator's queries, that it has taken all reasonable steps to locate the records sought by the applicant. I find, therefore, that the Council was justified in its decision to refuse the applicant's request for access to the records sought on the ground that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Decision

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

Elizabeth Dolan
Senior Investigator