Whether the Council was justified in refusing access to records relating to its decision to enter the applicant’s property on the vacant sites register under section 15(1)(a) of the FOI Act
9 August 2019
Background
The background to this review concerns a property owned by the applicant which was used as a shopping centre until it closed in 2008. In 2010, the property was zoned under the Limerick City Development Plan 2010 for retail use. In March 2013, the Council served notice on the applicant that it was going to enter the property on the derelict sites register. Following correspondence between the parties the site was not placed on the derelict sites register. In 2013, the Council identified the site under the Limerick 2030 Economic and Spatial Plan for potential development as a civic or cultural centre. In 2016, the Council commissioned a feasibility study on replacing the property with a new city library. In 2017, the Council raised with the applicant the issue of compulsory purchase of the site.
In January 2018, the Council served notice on the applicant that it was going to enter the property on the vacant sites register. In July 2018, the applicant submitted two FOI requests to the Council for (i) records relating to the decision to enter the property on the vacant sites register and (ii) records relating to the development of the property as a civic and cultural centre. It later applied to this Office for a review of the Council’s decisions in relation to both requests.
In January 2019, the High Court granted the applicant a stay on An Bord Pleanála’s determination of an appeal of the Council’s decision to place the property on the vacant sites register. The stay was granted pending the determination of judicial review proceedings taken by the applicant. In April 2019, the applicant agreed to sell the property to a third party. In July 2019, the applicant confirmed to this Office that, notwithstanding its agreement to sell the property, it wished to have both reviews finalised by way of a formal written decision.
In its request dated 25 July 2018, the applicant sought access to copies of all correspondence, attendance notes, minutes, emails, reports, submissions or any other record concerning:
1. The Council’s identification and assessment of the property for the purposes of the application of the vacant sites levy… to include any surveys undertaken;
2. The Council’s conclusion that the property was vacant or idle… including when such determination was made;
3. The Council’s investigation as to ownership of the property;
4. The Council’s conclusion that the property being vacant or idle has adverse effects on existing amenities… in the area in which the property is situated or has adverse effects on the character of the area;
5. The zoning of the area within which the property is situate… and any change in zoning under consideration by the Council post commencement of the Urban Regeneration and Housing Act 2015;
6. Any order of the Minister for Housing, Planning and Local Government permitting the Council to notify owners of vacant sites in respect of the matters set out in section 11(1)(a) to (d) of the 2015 Act at a date later than 1 June 2018;
7. The adoption of variation number 6 in the Development Plan;
8. The decision of the Council to apply its vacant sites levy policy to all zoned lands in the Development Plan;
9. The Council’s presentation to elected members of the assessment, any reports prepared by the Council’s Chief Executive recommending designated areas in the Development Plan in which the vacant sites levy could be applied…;
10. All details concerning the implementation and/or adherence by the Council to… Circular Letter PL7/2016…;
11. The number of sites owned by the Council that are subject to the vacant sites levy;
12. The matters the Council intends to direct the proceeds of the vacant site levy towards.
A second request also dated 25 July 2018 is the subject of a separate review under reference OIC-53269-Y9G7W5. In a decision dated 22 August 2018, the Council granted the applicant’s request in part. The Council granted access to records which relate to each part of the applicant’s request with two exceptions. The Council refused access to records which relate to parts 8 and 10 of the request under sections 15(1)(d) and 15(1)(a) of the Act respectively. On 18 September 2018, the applicant requested an internal review of the Council’s decision.
In its internal review decision dated 11 October 2018, the Council informed the applicant that it was releasing a number of additional records which it located following further searches. The Council stated that no further records exist or can be found after all reasonable steps to locate them have been taken and therefore section 15(1)(a) applies to the applicant’s request.
On 21 December 2018, the applicant applied to this Office for a review of the Council’s decision. Both the applicant and the Council made submissions in the course of this review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of the review
The applicant has requested records which relate to the Council’s decision to apply the vacant sites levy to all zoned lands in the Development Plan at part 8 of its request. The Council refused access to these records in its original decision under section 15(1)(d) of the Act on the basis that the information is already in the public domain. The Council stated that the decision to apply its vacant site levy was taken at its May 2017 meeting and minutes from this meeting are available on its website. However, following its internal review decision, the Council decided to release the minutes from the May 2017 meeting to the applicant. As the Council has released records which relate part 8 of the request, I do not intend to review the Council’s decision to rely on section 15(1)(d) of the Act. The scope of this review is confined to whether the Council was justified in its decision that section 15(1)(a) of the FOI Act applies to the applicant’s request insofar as it relates to additional records.
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Analysis and Findings
Section 15(1)(a) - "Search" issues
Section 15(1)(a) 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. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is 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. 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).
The applicant states that the Council has not provided any records which underpin the assessment of the property as vacant. The applicant states that the notice served on it on 12 January 2018, describes the property as “residential land” whereas the planner’s assessment describes the property as “regeneration land”. It says that it has not been provided with records underpinning the Council’s assessment of the property as “residential land”. The applicant states that it has not been provided with all records relevant to the Council’s investigation as to ownership of the property as the folio provided by the Council is only part of the property included on the vacant sites register.
The applicant says it has not been provided with any records which underpin the conclusion that the property being vacant has an adverse effect on existing amenities. It argues that it has not been provided with all records in connection with the decision of the Council to apply its vacant sites levy policy to all zoned lands in the Development Plan. The applicant states that while the Council acknowledged that it would adhere to all guidelines and circulars issued by the Department of Environment, Community and Local Government, it has sought to rely on section 15(1)(a) of the Act in refusing access to records concerning its adherence to circular letter PL7/2016. The applicant argues that the extract from circular letter PL 7/2016 provided by the Council is intended as guidance and does not speak to the matters the Council intends to apply the levy towards. It states that that Council ought to hold records relating to the matters it intends to direct the proceeds of the vacant site levy towards.
Following the applicant’s submissions, this Office requested the Council to respond to detailed queries in relation to searches undertaken to locate records within the scope of the request, including those specifically mentioned by the applicant. It also sought information on the Council's record management practices.
The Council says it has provided all records in relation to the Authorised Officer’s Assessment Report. It states that the initial assessment stating that the property was “residential land” was a typing error. Its position is that the Assessment Report concludes that the property is “regeneration land” and there was no change in the initial assessment of the land. The Council states that the copy folio provided to the applicant is the only folio held in its records and it does not hold further folios in relation to the remainder of the property. The Council states that confirmation of ownership was also received from the Rates Department and it provided the applicant with a copy of the relevant email correspondence. The Council states that the Urban Regeneration and Housing Act 2015 makes it clear that the decision of a Planning Authority in relation to adverse effects on existing amenities covers a number of different criteria and the Authorised Officer’s Assessment Report must be considered in the context of the legislation and the matters that a planning authority may take into account in their totality.
The Council states that the decision to apply the vacant site levy policy to all zoned was taken at a meeting of the Council on 29 May 2017 and it provided the applicant with the agenda and the minutes for this meeting. The Council states that it does not have particular records which concern its adherence to the guidelines issued by the Department of Environment in the form of Circular Letter PL 7/2016 entitled “Implementation of the Vacant Sites Levy as provided for in the Urban Regeneration and Housing Act, 2015”. It states that the relevant section of the Council keeps a copy of Circular PL 7/2016 on file along with the Urban Regeneration and Housing Act 2015 and refers to both. The Council states that Circular PL7/2016 provides that any monies received by a planning authority in respect of the vacant sites levy shall be spent by it where the sites comprises regeneration land on the development and renewal of regeneration land in the vicinity of the site. The Council states that it does not hold records which refer to the specific matters it intends to apply the levy towards.
The Council states that the Urban & Village Renewal (UVR) Department has responsibility for implementing the Vacant Sites Register. The Council provided this Office with a checklist for vacant sites which indicates the records typically created when considering a property for the Vacant Site Register. The Council states that the UVR Department is the only Department managing work on vacancy and dereliction. It states that, as this was the first time that properties were being entered on a Vacant Sites Register, any and all records were produced and kept within the UVR Department. The Council states that, in order to locate the requested records, searches were carried out on the relevant digital and physical vacant site file by the officer and administration staff who worked on the particular file.
I note that in its application to this Office, the applicant complains that the indicative map attached to the Authorised Officer's Inspection Report is illegible. It complains about handwritten amendments to the report and it states that it requested duplicates of the photos contained in the report. The Council states that the copy of the report provided is the exact copy available on the file, that the photographs of the property were taken by the Authorised Officer on her phone and copied to the Inspection Report and that it does not hold copies of these. I am satisfied that the indicative map attached to the back of the report is legible. The handwritten amendments to the report simply consist of a date and signature which amendment does not render any part of the report illegible. The applicant also complains that the minutes of the Council’s meeting dated 29 May 2017 are not signed or dated by the mayor. The Council states that there is no legal requirement for the minutes to be signed. It states that minutes are formally adopted at the appropriate Council meeting and are available for viewing on the Council's website.
The Council has located and released many of the records mentioned by the applicant in its request. It is clear that the applicant expected that further records ought to exist, in particular in relation to the Council’s assessment of its property as vacant and its conclusion that the property being vacant has adverse effects on existing amenities. It should be noted that the Commissioner is primarily concerned with ensuring public access to records in accordance with the provisions of the FOI Acts. The FOI Acts do not provide for a right of access to records which ought to exist. The fact that one might expect such records to have existed and to have been retained is not an issue for review. Further, the FOI Acts do not require a public body to create records where such records do not exist or are not held by it. It is also outside the function of the Information Commissioner to adjudicate on how public bodies perform their functions generally. As regards the applicant’s various complaints and queries on the map, photos, handwritten notes and signature dealt with above, I do not consider that these have substance or are directly relevant to my review of whether section 15(1)(a) has been properly applied.
On the basis of the information provided by the Council, I am satisfied that it has taken reasonable steps to locate all records within the scope of the applicant’s request. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to any further records which in the applicant’s view the Council ought to hold.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Council’s decision. I find that the Council was justified in refusing access to additional records under section 15(1)(a) of the Act on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out.
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