Case Number: 170065

Whether the Council was justified in refusing the applicant's request for records relating to various matters concerning a property

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 made a request under the FOI Act to the Council on 23 December 2016. The request, set out in items 1-4, was for access to records of communications held by the Council relating to the Old Mill in Julianstown, Co. Meath, including records in relation to the owners of the Old Mill, meetings, notes and memos etc., with particular reference to the contents of a letter of 8 February 2016, and other information relating to statements made by Councillor Sharon Tolan at a public meeting in November 2016.

The Council's decision dated 20 January 2017 notified the applicant that it had refused the request. However, while it stated that the purpose of the letter was to explain its decision, the Council made no reference to any of the exemptions it had relied on; neither did it offer any explanation about those exemptions. In the letter, the Council included a "summary of decision making". However, while this merely repeated each of the four points of the FOI request and referred to exemptions on the basis of sections 15(1)(a), 35(1)(a) and 36(1)(c) of the FOI Act, the decision maker did not associate any of those exemptions with specific records.

Following a request for an internal review, the Council issued a decision on 1 February 2017. In that decision, the Council stated that it had affirmed the original decision but did not notify the requester of the reasons for the refusal. On 7 February 2017, the applicant sought a review by this Office of the Council's decision.

During the course of this review, the Council stated that it had released one file (a set of twelve records) to the applicant. However, there is no mention of 'released' records in either of its decisions.

In conducting my review, I have had regard to the submissions of the Council and the applicant and to correspondence between the applicant and the Council. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

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 15(1)(a), 35(1)(a) and 36(1)(c) of the FOI Act.

Preliminary Matters

I wish to state at the outset that I am very disappointed with the decision making process of the Council in this case. Section 13 of the FOI Act provides that 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).

As mentioned above, the Council failed to notify the requester of the reasons for the refusal. 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. In addition, I would note here that while the FOI Act does not require a schedule of records, it is clearly best practice to provide the requester with one. Unless they are relying on a "neither confirm nor deny" provision, FOI bodies should clearly list what records they hold within the scope of the request.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies the Commissioner that its decision was justified. In the normal course, failure by the body to justify its decision is sufficient for this Office to find that the body had not justified its refusal to release certain records. However, given the nature of the records at issue, I am also aware of the fact that the release of many of the records could affect the interests of third parties. Accordingly, while having regard to the provisions of section 22(12)(b) in conducting this review, I have also had regard to the fact that the release of certain records may affect the interests of third parties, as it seems to me that the Council's failure to properly engage with this Office should not result in unwarranted adverse consequences for the various third parties.

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 role of this Office 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 I 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 FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office 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. It is not normally the function of this Office to search for records that a requester believes are in existence.

In his internal review request, the applicant explained that he was requesting access to records which related to statements by Councillor Tolan and "not records detailing her statement". In a submission to this Office, the applicant further explained that he was requesting records "relating to the activities" that the Councillor allegedly referred to in her statement.

In its submission to this Office, the Council stated that it had performed "visual" and electronic searches of its files and folders and that those searches were carried out by applying a number of keywords associated with the applicant's request and file.

The Council further stated that it is unlikely that records are misplaced "as none of the staff involved in this case and related discussions were aware Cllr. Tolan made comments at a public meeting until this Freedom of Information request was submitted."

The position of the Council is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Council to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 35 - Information obtained in confidence and section 36 - Commercially Sensitive Information
The Council refused access to the records at issue on the basis of sections 35(1)(a) and 36(1)(c) of the FOI Act. During the course of this review, the Council provided this Office with two files containing records, one of which, as mentioned earlier, it says was released to the applicant. The second file is a set of records numbered up to '73'. However, in the schedule that accompanied the second file, the Council did not provide any information about how the exemptions applied to the records.

Section 35(1)(a)
Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;

• that the information was given to an FOI body in confidence,
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(2) of the Act provides that section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider, unless disclosure would constitute a breach of a duty of confidence which is owed to a person other than an FOI body, member of staff of an FOI body or service provider. In addition, section 35(3) provides that section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

Section 36(1)(c)
Section 36(1)(c) provides that:

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -

...(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the persons to whom the information relates."

Section 36(1)(c) is also subject to certain exceptions (section 36(2)) and to a public interest balancing test (section 36(3)).

In a letter of 5 February 2017, an Investigator of this Office invited the Council to make a submission, to provide full reasons as to why it considered the records to be exempt from release. The letter set out in some detail a number of issues the Council should address if it wished to justify its decision to refuse access to the records. The Investigator referred the Council to the suite of Guidance Notes and previous decisions of the Commissioner available on this Office's website. The Notes provide a summary of the issues relevant to certain exemption provisions and comment on the interpretation and application of those exemptions by the Commissioner.

In its submission, the Council stated that "the request for information in this file (in its entirety) was refused under Section 35(1)(a) and 36(1)(c)". It also stated that confidentiality was a reason for exempting the records under both sections. However, the Council made no mention of subsections 35(2) and 36(2) of the FOI Act. In addition, it is clear to me that the Council at no time applied the public interest test, as provided for at section 35(3) and 36(3) of the Act.

In a separate communication to the Council, the Investigator requested clarification about how the Council had applied the exemptions and, in particular, whether both exemptions applied to all records, or if one or more exemption applied to one or more records. The Council did not reply other than to indicate on 24 May 2017 that it was "reviewing the files". This Office responded pointing out the lack of engagement to date and stating that any submissions would be taken into account if received before 3 June 2017. It is not appropriate that the Council would, at this stage, seek to apply an apparent blanket exemption to all records coming within the scope of the request under sections 35(1)(a) and/or section 36(1)(c). It may well be the case that certain records are exempt from release on the basis of the exemptions cited by the Council. However, I am not satisfied that it has undertaken any substantial consideration of the content of the individual records as required by the FOI Act.

In light of the manner in which the Council processed the request, I find that it has not justified its decision to refuse the request. However, given the nature of the records at issue and given that release of the records would clearly involve the disclosure of information relating to third parties, I do not consider it appropriate to direct the release of the records at this stage. Instead, I consider that the appropriate course of action is to annul the Council's decision and to direct it to make a new first instance decision in respect of the applicant's original request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council. I affirm the Council's refusal of access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I annul its decision to refuse records on the basis of sections 35(1)(a) and 36(1)(c), and direct it to conduct a new decision-making process on the FOI request. This decision will be subject to the time limits and other provisions of the FOI Act.

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