Whether the Council was justified in refusing access to information held in relation to the content of the Planning and Development Acts and records evidencing a meeting between named politicians and the former County Manager under section 15(1)(a) of the FOI Act, on the grounds that further records do not exist or cannot be found after all reasonable steps to locate them
11 December 2019
Background
On 17 January 2019 the applicant submitted a five-part request to the Council for the following:
- The section of the Planning and Development Acts which permits and/or permitted an applicant(s) to appeal a planning decision of a local authority
- The section of the Planning and Development Acts which permits and/or permitted any politician(s) to make a decision for an applicant to submit a fresh application for retention
- The section of the Planning and Development Acts which permits and/or permitted any politician(s) to make a decision for an applicant(s) planning appeal
- Any section of the Planning and Development Acts which permits and/or permitted any politician(s) to make any decision(s) pertaining to Planning
- All records in the Council including the former County Manager’s Diary as well as the office of the current Chief Executive or any other office or system evidencing a meeting between the former County Manager and a number of named public representatives including minutes, date, location, time, attendees or other decisions or any other details evidencing the meeting.
On 14 February 2019, the Council wrote to the applicant and stated that it was granting the request. It provided a link to the Planning and Development Acts in response to parts (i) to (iv) of the request. In response to part (v) of the request, it released eight records comprising correspondence between the applicant and the Council and a memo from a staff member of the Council confirming that she had no access to the former County Manager’s diary or the current Chief Executive’s office.
On 13 March 2019, the applicant sought an internal review of the decision, following which the Council affirmed its original decision and stated that records relating to part (v) of the request did not exist and had previously been refused on that basis in response to a previous FOI request from the same applicant. That decision was reviewed and affirmed by this Office (Case No 140055 refers).
During the course of the review, this Office provided the applicant with details of the Council's submissions regarding the searches it conducted in response to his request. Ms Whelan of this Office informed the applicant of her view that the Council had carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought and that it was justified in refusing the request on the ground that no further records falling under the scope of the request exist. She invited the applicant to make a further submission on the matter.
The applicant stated that a record held on the relevant planning file ought to have been released in response to his request. The Council administratively released a copy of that record to the applicant during the course of the review, while stating that it did not consider the record as falling under the scope of the original request as it was held on the hard copy planning file which is available for public inspection. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.
Scope of Review
This review is concerned solely with the question of whether the Council was justified in refusing to release any additional records coming within the scope of the applicant’s request on the ground that all relevant records have been released and no further records exist or can be found.
Preliminary Matters
Before I address the substantive issues arising, I wish to note 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.
Analysis and Findings
Section 15(1)(a) of the FOI Act 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 case involving section 15(1)(a) 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 such cases includes the steps actually taken to search for records. It also comprises 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.
Parts (i) to (iv)
The applicant essentially requested the Council to identify the sections of the Planning and Development Acts that provide statutory authority for the acts identified at parts (i) to (iv) of his request. In response, the Council provided a link to the Planning and Development Acts in full, which are available publicly. The applicant in correspondence with this Office stated that he is of the view that the information he is seeking is not contained in the Planning and Development Acts.
It appears that the applicant is of the view that some or all of the acts he identified are not permitted under the Planning and Development Acts and that he is attempting to compel the Council to confirm that view by stating that no such relevant statutory provisions exist. As he believes that no such provisions exist, I would question whether parts (i) to (iv) of his request can reasonably be regarded as properly made requests for records. This Office has no role in examining the appropriateness, or otherwise, of the manner in which public bodies carry out their functions. As such, the question of whether or not the Planning and Development Acts permit the actions identified is not a matter for consideration by this Office.
The Council has provided the applicant with a link to the Planning and Development Acts in full. In the circumstances, and given that no evidence has been presented to this Office to suggest that relevant records should exist, I find that the Council was justified in refusing to release any additional records coming within parts (i) to (iv) of the applicant’s request on the ground that no further relevant records exist.
Part (v)
The applicant also requested all records evidencing a meeting between named public representatives and the former County Manager. The Council provided details of the searches conducted on foot of part (v) of the request. As outlined above, Ms Whelan provided the applicant with these details. 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 Council said that any records falling within the scope of the request were destroyed, including the former Chief Executive’s diaries. The Council said that minutes of meetings between the Chief Executive and elected representatives are never, and have never been, kept as such meetings are generally treated as confidential. The Council stated that all relevant records held have been released to the applicant in response to his previous FOI request (Case No 140055 refers) and the current request.
Having considered the matter carefully, I am satisfied that, at this juncture, the Council has taken all reasonable steps to ascertain the whereabouts of any remaining relevant records. I find that the Council was justified in refusing to grant access to further relevant records under section 15(1)(a) on the ground that that records in question do not exist or cannot be found.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to release any additional records coming within the scope of the applicant’s request on the ground that all relevant records have been released and no further records exist or can be found.
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