Case Number: 170212

Whether the Council was justified in refusing the applicant's request for further records relating to the Council's possession of a specified site, under section 15(1)(a) of the FOI Act

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 Council is in occupation of a site adjacent to a local GAA club in Dunmore, which it uses as a storage depot. In a letter dated 24 January 2017, the applicant asked the the Council what legal right it has to the land. He stated that he was making that request under the FOI Act.

On 20 February 2017, the Council informed the applicant that it had decided to grant his request and it released four records relating to the transfer of a small parcel of land by the GAA club to the Council. The applicant sought an internal review of that decision on 2 March 2017, on the ground that the records released did not relate to the area at issue, but rather to a smaller area of 0.05 acres in the vicinity. On 13 April 2017, the Council affirmed its original decision. On 2 May 2017, the applicant sought a review by this Office of that decision.

During the course of the review, the Council located one additional relevant record. By letter dated 14 August 2017, Mr Flood of this Office provided the applicant with a copy of that record and informed the applicant of his view that the Council was justified in deciding that no further relevant records exist or can be found. Mr Flood invited the applicant to make a further submission and also offered him an opportunity to withdraw his application for review. As no response has been received from the applicant to date, I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the relevant correspondence between the applicant and the Council and to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in refusing access to additional relevant records relating to the applicant's request for information concerning the specific site on the ground that no further records exist or can be found following all reasonable steps to ascertain their whereabouts.

Analysis and Findings

As outlined above, the applicant's request was in the form of a question to the Council. While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. As such, I have interpreted the applicant's request as a request for access to any records relating to the Council's entitlement to the land in question.

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises 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.

During the course of this review, the Council provided this Office with details of the background to its possession of the site in question and of the searches conducted in response to the applicant's request. The Council stated that the storage depot was established in 1984 following acquisition of 0.05 acres of land from the GAA club and that the correspondence relating to that acquisition was provided to the applicant in response to his request. It stated that the depot was enlarged in 1999, facilitated by the Dunmore Demesne Recreational Trust Ltd which is the registered owner of the land concerned. It stated that no written record of the arrangement could be located but that a handwritten note was located of a telephone conversation that took place in 2003 with a former Council executive engineer, wherein the engineer recalled having signed an agreement on the Council's behalf regarding the arrangement. As outlined above, Mr Flood of this Office provided the applicant with a copy of that handwritten note.

The Council stated that it holds a hard copy file relating to the compound in Dunmore which was set up in 2003 when the applicant first raised the issue with the Council and that no records other than those already released could be found. It further stated that it carried out a search in the Council Municipal District office in Tuam, where records which were previously stored in the Council's office in Milltown were transferred to in 2007, but that no records additional to those on the hard copy file in the Council headquarters in Prospect Hill were located. It added that there are no electronic records held on the matter as the relevant documentation predates this format of storing documentation.

It would appear that a record of the arrangement entered into in 1999 to facilitate the enlargement of the depot did, at some stage, exist. However, the Council has not been able to locate such a record. Nevertheless, it is important to note that it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.

Having regard to the Council's description of the background to its possession of the site and to the details of the searches it has undertaken to locate relevant records, I am satisfied that it has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. I find, therefore, that the Council was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse to release additional records coming within the scope of the applicant's FOI request under section 15(1)(a) 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.

Stephen Rafferty,
Senior Investigator