Whether the Council was justified in refusing to grant further records covered by the applicant's request for records relating to the monitoring and surveying of drains and of works carried out on and inspections of her house

29 November 2018 

Background

On 28 February 2018, the applicant made an FOI request to the Council. Her request was lengthy (over several pages) and, because my review is concerned with only some aspects of it, I do not intend to describe it in full. Generally speaking, the applicant sought records relating to meters, drainage layouts, surveys and monitoring of drains, and records of works carried out on and inspections of her house. She also asked the Council to reply to various queries she had made to it since 2015, and to queries in other FOI requests she had made to the Council and Irish Water. 

The Council's decision of 22 May 2018 granted access to some records and related information. The applicant sought an internal review on 14 June 2018. In summary, she considered that the Council had not granted all the records she had requested. The Council did not issue an internal review decision within the statutory timeframe, effectively affirming its decision on the request. 

On 5 August 2018, the applicant sought a review by this Office of the Council's decision. On 9 August 2018, the Council provided the applicant with further information and records, including a digitised map of networks in the location of her estate and a record of callouts for assessment of the sewer network for three estates including her own. The applicant confirmed to this Office that she was still not satisfied with the records provided to her. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Council, and the applicant. I have had regard also to the provisions of the FOI Act. 

Scope of Review

This Office's letters to the applicant of 28 August 2018 and 13 September 2018 explained why various matters she had raised were outside the scope of the review. In summary, this review is confined to whether the Council has justified its refusal to grant access to further records covered by certain valid parts of the applicant's request, as follows:

• a further map or maps showing all the foul/water/wastewater/soilwater drains beneath all of the "domiciles" on the applicant's estate (the estate) including her own, which also denotes all the connections. 
• further maps of public sewers or other drains in the estate or in all other areas that are also served by the drains serving the estate.
• records of the type described in the applicant's request in relation to monitoring, which she considers to be different to surveying.
• records of the type described in the applicant's request in relation to surveys of the rest of the estate, or in all other areas.
• records of the type described in the applicant's request in relation to surveys or monitoring by "entities" or "persons". The applicant considers "entities" to be entirely different to contractors engaged by the Council to survey or monitor its behalf and has given an example of the Health Service Executive. She says that "persons" includes tenants and buyers.
• records of the type described in the applicant's request in relation to surveys or monitoring carried out by private organisations to which she says the Council has access.
• records of the type described in the applicant's request in relation to permissions for monitoring.
• records of the works that were carried out of the applicant's house and subsequent inspection reports. 

I should also make it clear that queries or questions are not valid requests for access to records under the FOI Act. The FOI Act is concerned with access to records held and also requires requesters to provide sufficient particulars in their FOI request to enable relevant records to be identified.

Findings

Section 15(1)(a) - adequacy of search/do records exist?
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records. 

In considering section 15(1)(a) in this case, it should be noted that this Office has no remit to examine, or make findings on, whether or not the Council should have created further records, the level of detail in records that were created, or the Council's record management practices generally. 

This Office's letter to the applicant of 1 November 2018, to which she did not reply, outlined the Council's position regarding the matters under my review. The details were obtained from the Council in response to this Office's queries. The key points of that letter are as follows:

Maps
Original drawings in relation to drainage for the estate and two other areas were not transferred to the Council's water services department and are deemed lost. The drainage department relies on its own local knowledge of the ground layout of drainage as necessary. While the Council intends to map all foul water and storm drains in the future, no drawings or maps are held at this time. 

Foul and storm services in the applicant's estate are the start of the line. Mapping would be available from Irish Water regarding services exiting the estate and discharging to the wider Irish Water and Council networks. 

Thus, the Council holds no further maps. 

Monitoring, surveys and permissions
The Council does not carry out monitoring. It is the only party authorised to carry out surveys. No entities (including private organisations) or persons may or could carry out surveying or monitoring on the network. 

The drainage department carries out surveys and deals with blockages that have occurred. It does not create permanent records of CCTV surveys. 

Thus, the Council holds no records relating to monitoring or permissions for monitoring or surveying, planned surveys, CCTV records of blockages that have occurred, or records of surveying or monitoring carried out by entities, persons or private organisations. 

Records of works and inspections
During the review, the Council located a number of records (as referred to in its submission to this Office of 12 October 2018), including a small number of very brief inspection reports that are held on an electronic database. The Council says that it does not hold any further inspection reports containing any more detail. 

Findings

I appreciate how important it is to the applicant that she be supplied with as many records as possible about the drains in her estate, the works done to her house and the other matters set out in her request. She feels that the Council should hold further, more detailed records and is not satisfied with its explanations. 

However, section 15(1)(a) of the FOI Act does not require the Council to account for all the records the applicant says it should hold. Rather, in order for me to be satisfied that section 15(1)(a) applies, the FOI body must demonstrate that it has taken all reasonable steps to ascertain the whereabouts of the records or that the records do not exist.

The Council's position is that it has taken reasonable steps to look for further records covered by this review. According to its submissions, it has examined relevant files and asked staff to comment. It also identified additional records further to this Office's queries. I am unable to identify further specific searches that I feel the Council should carry out in this case and I do not believe that the FOI Act requires me to direct it to indefinitely carry out general searches. Thus, I am satisfied that the Council has demonstrated that it has taken all reasonable steps to search for records covered by my review. I find that section 15(1)(a) applies. 

Records found during this review
As mentioned above, the Council located further records during this review. However, it would not be appropriate for me to make a first instance decision on those records, where the Council has not decided whether the records are exempt under the provisions of the FOI Act or considered any relevant public interest tests.

The most appropriate decision for me to make in the circumstances is to annul the Council's effective refusal of the additional records found during the review (i.e. those referred to in its submission to this Office of 12 October 2018), and to direct it to make a fresh decision on them in accordance with the provisions of the FOI Act. The effect of this is that the Council is required to make a new, first instance, decision on the records concerned.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's refusal to grant the applicant access to further records. I annul the Council's effective refusal of the records it found during the review (i.e. those referred to in its submission to this Office of 12 October 2018), and I direct it to make a fresh decision on those records in accordance with the provisions of the FOI Act. I affirm the Council's refusal to grant access to further records covered by this review, on the basis that I am satisfied that the Council has demonstrated that it has taken all reasonable steps to search for such records and that section 15(1)(a) applies.
 

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