Whether the Board was justified in its decision to refuse access to further relevant records relating to the applicant's planning appeal under section 15(1)(a) of the FOI Act on the grounds that no further relevant records exist
26 April 2019
Background
On 11 December 2018, the applicant submitted a request to the Board for copies of all records concerning her appeal in connection with planning permission for a specific property in Dublin that had not been uploaded to its website. On 8 January 2019, the Board issued a decision in which it stated that it was part granting the request. It stated that it had decided to grant access to the minutes of a meeting at which the case in question was decided, being the only record held that was not publicly available.
On 20 January 2019, the applicant sought an internal review of that decision, essentially on the ground that the available documentation did not adequately explain why the Board did not accept the planning inspector's recommendation. The Board issued its internal review decision on 6 February 2019 in which it affirmed its original decision. It also provided details of the process followed where the decision is different to the inspector's recommendation. On 28 February 2019, the applicant sought a review by this Office of that decision. In that application for review, the applicant stated that the meeting minutes released were different to the version previously released to her architect, and she referenced further records she considered should exist.
During the course of the review, Ms Hannon of this Office provided the applicant with details of the Board's explanation of the nature and extent of the searches conducted and of its reasons for deciding that no other relevant records exist. She informed the applicant of her view that the Board was justified in refusing the request under section 15(1)(a) of the FOI Act and she invited the applicant to make a further submission on the matter.
As submissions have now been received, I have decided to 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 Board and the applicant. I have also had regard to the communications between this Office and both the applicant and the Board on the matter.
Scope of the Review
This review is concerned solely with whether the Board was justified in its decision to refuse access to further relevant records relating to the applicant's planning appeal under section 15(1)(a) of the FOI Act.
Preliminary Matters
Before I consider the substantive issues arising, I would like to make a number of preliminary comments. Firstly, it is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Secondly, the FOI Act does not require a public body to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices (which is not of relevance in this case). Neither does the Act require a public body to provide clarifications of the contents of records, or to include records in its files that a requester believes it should hold. If the body does not hold the record sought and cannot extract the electronically held record by taking reasonable steps, then that is the end of the matter.
Thirdly, in submissions to this Office the applicant raised various concerns she had with the manner in which the Board processed her planning appeal, including the Board's handling of submissions made by an elected representative on the appeal. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.
Finally, in submissions the applicant also stated she wished to request a statement of reasons from the Board under section 10 of the FOI Act. It is open to the applicant to submit an application to the Board under section 10 of the Act for such a statement of reasons should she so wish. However, as outlined above, this review is confined to whether the Board was justified in its decision to refuse access to further relevant records relating to the applicant's planning appeal under section 15(1)(a) of the FOI Act.
Analysis and Findings
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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The Board provided details of the searches conducted on foot of the request that is the subject of this review. As I have outlined above, Ms Hannon provided the applicant with details of the searches undertaken for those records. While I do not propose to repeat these details in full here, I confirm that I have had regard to them for the purpose of this review.
In summary, the Board stated that it is its practice to retain all records pertinent to a case within a single hardcopy case file. It said that during its life cycle, each case file is moved physically to each section as it proceeds through the appeal process. Each case is assigned to a specific person within each section to ensure a clear record of its movement. It said that once a decision has been made on an appeal, the entire case file becomes a matter of public record within three working days, in accordance with the Planning and Development Act, 2000 (as amended). It stated the only other relevant document is the Minutes of Meeting which were provided to the applicant. It said electronic and physical searches were undertaken, all relevant individuals were consulted and no further records were located. It also said that no case files had been destroyed within the time frame of the request.
In her submissions to this Office, the applicant raised two matters of concern, the first of which related to the involvement of an named elected representative in the appeal process. I note that the elected representative in question wrote to the Board to seek an extension of the time for making submissions on the appeal on the ground that some residents were unaware of the applicable deadline as the notification of the appeal issued by Dublin City Council did not contain the relevant information. In response the Board informed the elected representative that it was bound by the relevant legislation and that it had no power to extend the deadline. The applicant argued that the Board must hold further documentation concerning what it described as the elected representative's "submissions".
In my view, the correspondence that the applicant provided on the matter does not support her argument that further relevant records should exist. The response clearly addresses the elected representative's request and does not suggest that additional internal correspondence would have been created. Even if additional records had been created, I am satisfied that the searches conducted and the records management process followed by the Board in respect of planning appeals would have resulted in them being found.
The second matter of concern relates to the existence of two different versions of the relevant Board minutes. The applicant explained that her architect had been provided with a copy of the minutes following his request for information relating to the appeal and that the version issued on foot of the FOI request was different. The record initially released indicates that the inspector's recommendation was "Generally Accepted" while the second record indicates that the inspector's recommendation was "Not Accepted".
Ms Hannon of this Office sought clarification of the matter from the Board. In response, the Board explained that the record of the minutes is recorded electronically and that the relevant information on the appeal was initially entered incorrectly. It stated that the error only came to light subsequent to the applicant's architect having been given a copy of the electronic record. It stated that the error was corrected and when the applicant submitted her FOI request, the copy provided was the corrected record. I accept the Board's evidence on this point and that the applicant has been given a copy of the only record of the meeting minutes that it holds.
Having considered the Board's explanation as to why it does not hold further records relating to the applicant's appeal and details of the searches undertaken, I find that the Board was justified in refusing access to any additional relevant 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 affirm the Board's decision to refuse the applicant access to further relevant records relating to her planning appeal under section 15(1)(a) of the FOI Act on the grounds that no further relevant records exist.
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
