Whether the Council was justified in deciding to refuse access to further records related to boundary queries or changes between a named estate and a named property, and any records related to tree maintenance carried out by the Council in the area, including correspondence between the Council and a named third party, on the ground that no further relevant records exist or can be found

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 background to this review is that the owner of a named property arranged for the removal of a tree that was situated between the rear of a named estate and the property in question. On 8 March 2017, the applicant submitted a request to the Council for all records related to boundary queries or changes to boundaries since January 2014 between the rear of the named estate and the named property, all records related to tree maintenance carried out by the Council in 2016 in the named estate, and all correspondence between the Council and the owner of the named property. On 13 April, the Council informed the applicant that it was granting his request and provided a number of records. 

On 3 May, the applicant sought an internal review of that decision on the grounds that he had not received all relevant records. On 29 May, the Council released one additional record, namely a diary entry relating to tree maintenance. On 27 June, the applicant sought a review by this Office of the Council-™s decision. 

During the course of this review, the Council provided this Office with information regarding the searches conducted to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches by telephone and email on 23 October 2017. She also informed the applicant of her view that the Council was justified in deciding that no further relevant records exist. 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 further records relating to the applicant-™s request under section 15(1)(a) on the ground that no further records exist or can be found.

Analysis and Findings

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.

In a submission to this Office, the Council provided details of the searches conducted to locate the records sought by the applicant. In summary, the Council stated that it records interactions on its electronic tracking system, the Customer Contact Management System (CCMS), and that it searched the CCMS and consulted all relevant staff members. The records located comprised details of the Council's interactions with the owner of the named premises as recorded on the CCMS and the diary entry referenced above. It also provided the applicant with a copy of a map downloaded from the website of the Property Registration Authority.

The Council stated that its searches involved discussions with the District Engineer and the Senior General Services Supervisor, both of whom confirmed that their dealings with the property owners were all verbal in nature and that no written records were generated. It stated that the named estate is private and has not been taken in charge by it, and that it undertook no surveys or legal mappings relating to the boundary between the estate and the named premises.

The applicant clearly feels that the Council should have recorded more details of its interactions in relation to the maintenance and subsequent removal of the tree. While the lack of records is somewhat surprising, the FOI Act is concerned with the provision of access to records actually held and it does not provide for a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exists.

I should also explain that this Office has no role in examining the administrative actions of public bodies. If the applicant has any concerns relating to the manner in which the Council dealt with the substantive issues concerning the tree at issue, he may wish to make a complaint directly to the Council in the first instance. He may also wish to consider availing of the services of the Office of the Ombudsman if he remains dissatisfied following the Council's consideration of any such complaint.

On the matter of the searches undertaken by the Council in relation to the applicant's FOI request, I am satisfied that it has taken all reasonable steps to locate the records sought. I find, therefore, that the Council was justified in its decision to refuse the applicant's request for additional relevant records on the ground that no such records exist or can 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.

Stephen Rafferty
Senior Investigator