Whether OSI was justified in refusing access to further records coming within the scope of the applicant’s request for records relating to his property and a neighbouring property under section 15(1)(a) on the grounds that no further records exist
26 August 2019
Background
In a request dated 15 January 2019, the applicant sought access to records relating to the inspection, survey or mapping work or any other work-related task at his property and any subsequent report or circulation of same. He also requested the same information relating to named third parties and a named commercial entity of a neighbouring property. In its acknowledgement of the request OSI informed the applicant that information relating to the second part of the request could not be released under data protection law. In response, the applicant stated that he was not requesting any personal information as part of his request.
In a decision dated 14 February 2019, OSI released two records to the applicant in relation to the first part of his request. It also provided an explanation of the reasons for the existence of the records. It made no reference to the second part of the request apart from acknowledging that the applicant had also sought the same information relating to an adjacent area.
On 1 March 2019, the applicant sought an internal review of that decision following which OSI affirmed its original decision. On 18 April 2019, the applicant sought a review by this Office of OSI’s decision.
During the course of the review, OSI explained that it holds certain metadata on the electronic system within which its revisers manage their survey work. Following discussions with this office, it undertook to release all such data held relating to the survey of the applicant’s property.
I have now completed my review of OSI’s decision. In conducting the review, I have had regard to the correspondence between OSI and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and OSI on the matter.
Scope of Review
In essence, the OSI’s position is that no other records relating to the survey of the applicant’s property exist, apart from the two records released and the metadata it intends to release shortly, and that it is not in a position to release records relating to the neighbouring property.
Accordingly, this review is solely concerned with whether OSI was justified in its decision to refuse the applicant's request for additional records relating to his property and an adjacent property that are captured by his request.
Preliminary Matter
It is important to note at the outset that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I have taken account of the fact that the OSI has already agreed to release relevant metadata when considering whether it has, at this stage, taken all reasonable steps to locate additional relevant records.
Analysis and Findings
Section 15(1)(a) 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 "search case" 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 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.
Records relating to the applicant’s property
In relation to the first part of the applicant’s request, OSI provided this Office with an explanation of the basis on which it conducted a survey of the applicant’s property, summarised as follows:
OSI conducts a continuous mapping revision programme for the whole of the Republic of Ireland mandated under sections 4(b) and 4(c) of the Ordnance Survey Ireland Act 2001. It enjoys a very close working relationship with the Property Registration Authority (the PRA). The PRA utilises OSI’s topographic mapping to cross-reference and associate its boundary information.
A reviser was in the area where the applicant’s property is situated in August 2017 as part of OSI’s commitment to the PRA. There were a number of geopoints in the surrounding area which the reviser was planning to visit and he checked for further changes on the OSI latest ortho imagery. OSI uses the latest ortho imagery to improve the shapes of buildings and in addition, to make modifications as appropriate to features in the vicinity of and relative to such buildings.
The reviser noted that there appeared to be a new residence at specified coordinates as the building was a different shape compared to what existed in OSI’s Prime 2 database and the building also had a chimney. The reviser requested a job to be made for this new residence based on the ortho imagery and selection of land to be revised. Permission was sought from and granted by the occupier on the day of the visit and the reviser resurveyed the building, which was now a residence, updated the building function and surrounding detail that was there on the day.
Revisers use a web-based environment to create, edit, schedule and allocate jobs within a Geospatial Management System (GMS). Using specified software, revisers activate their jobs in the office and work on them on site on portable devices. The jobs are then downloaded at that stage. Staff then return to the office and upload the jobs to the GSM. A job is a defined area of geospatial data created by a planner and assigned a unique ID.
On the matter of searches carried out for relevant records, OSI stated that searches for records were conducted within the GMS as this is where it manages its revision workload and that all geospatial data is managed within this system. A geospatial managed job on the GMS can be searched for by metadata which includes flowline type, job planner name, worker name, creation date, actual start date, actual end date, justification, reference and comments. This metadata can be reported on from a real time GMS report system.
The original searches conducted on the GMS recovered two records; an orthoimage of the applicant’s property and an image showing the selection of land to be revised based on differences observed with the orthoimage.
OSI stated that all relevant staff were consulted and all relevant records were searched. It stated that the FOI Officer liaised with the decision maker in Surveying and Remote Sensing Division as well as relevant staff in the OSI Regional Office in Sligo.
In his submission of 11 June 2019, the applicant argued that further records should exist in relation to the first part of his request. It appears that he does not accept OSI’s explanation of the basis on which it decided to survey his property. Much of his submission relates to information and evidence he believes OSI should have provided to support its explanation. He also argued that as his house was renovated in or around 2005 and as the building did not change since then, it is difficult to see how it could be determined that it had.
The applicant also queried the date of the orthoimage that was released as he interpreted OSI’s decision as suggesting that the image was dated August 2017 and he argued that it could not be from that date as it shows two cars that he had disposed of well before then. He also queried why no records had been released relating to matters such as a report on the survey, correspondence concerning the internal circulation of the survey, expenses claimed by the reviewer, who requested the survey, or responses to the person who requested the survey.
Ms Whelan of this Office subsequently sought further details from OSI having regard to the applicant’s queries. In response, OSI indicated that the reviser, who was in the area on 31 August 2017 as part of OSI’s commitment to the PRA, noticed the change in the appearance of the building at the specified coordinates from the orthoimage he had examined, which prompted a planned job on the same day. The job was downloaded on 11 September 2017, the revision was completed on 13 September and the completed job was uploaded to the GMS on 14 September.
OSI further stated that no specific instruction outside of its mandate and associated obligations relate to the revision in question. It stated that all work on jobs is done through the GMS and that no correspondence relating to the job was created, nor was a report was created following the survey. OSI explained that permission from the occupier of the property, being the applicant, was obtained orally before commencing the relevant job in this case and therefore no records were created in this respect.
OSI explained, however, that information concerning the survey can be inferred from viewing the metadata. As it had explained in its initial submission, a geospatial managed job on the GMS can be searched for by metadata which includes flowline type, job planner name, worker name, creation date, actual start date, actual end date, justification, reference and comments. As stated above, OSI has undertaken to release the relevant metadata to the applicant.
Finally, OSI stated that records relating to a subsistence claim by the reviser for the revision in question is held in offsite storage and can be retrieved if required.
As I have outlined above, the applicant appears to believe that there was a different reason why his property was surveyed to the reason given by OSI and he expects OSI to be in a position to provide records that support its explanation.
The FOI Act provides for a right of access to records held by a public body. If the record sought does not exist that is the end of the matter, regardless of whether the requester considers that further records ought to exist. It is important to note that the FOI Act does not require a public body to create a record to provide information sought by a requester if no such record exists, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices.
It is also 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.
In the absence of evidence to suggest otherwise, I accept OSI’s explanation of the basis on which the applicant’s property was surveyed and of the process undertaken in doing so.
On the matter of records relating to the reviser’s subsistence claim, I do not accept that such records come within the scope of the applicant’s request, which was for all details pertaining to him and his address.
In conclusion therefore, I find that OSI was justified in refusing access to any additional records coming within the scope of the first part of the applicant’s request under section 15(1)(a) on the ground that no further relevant records exist, having taken all reasonable steps to ascertain their whereabouts.
Records relating to the adjacent property
OSI was not correct in essentially refusing to process the second part of the applicant’s request based on data protection concerns. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.
Section 44 of the Data Protection Act provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request
Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.
Accordingly, I am satisfied that the appropriate course of action to take at this stage is to annul OSI's decision to refuse the second part of the applicant’s request. The effect of this is that OSI must consider that part of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with OSI’s decision. I would also draw OSI's attention to sections 13(2)(d) and 21(5)(c) which require public bodies to provide reasons for refusing requests, details of the provisions on which the refusals are based, and findings on any material issues relevant to those decisions.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of OSI in this case. While I affirm its decision to refuse access to additional records coming within the scope of part one of the applicant’s request under section 15(1)(a), I annul its decision in respect of part two of the request and I direct OSI to conduct a fresh decision-making process in respect of that part.
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