Whether Irish Water was justified in its decision to refuse the applicant’s request for access to additional records relating to the planting of a shelter belt at Clifden Wastewater Treatment Plant and relating to noise levels at the plant

22 November 2019

Background

On 26 September 2018, the applicant submitted a request to Irish Water for access to records from 2015 to the date of his request relating to the planting of a shelter belt for the Clifden Wastewater Treatment Plant and relating to noise levels at the plant. On 28 November 2018, Irish Water issued its decision on the request in which it granted access to five records. On 28 December 2018, the applicant sought an internal review of that decision on the ground that Irish Water had not considered all relevant records for release.

Irish Water issued its internal review decision on 28 January 2019, in which granted access to an additional 100 records with the redaction of certain information from a number of the records on the ground that the redacted information was not captured by the scope of the applicant’s request. On 25 July 2019, the applicant sought a review by this Office of Irish Water’s decision, again on the ground that Irish Water had not considered all relevant records for release.

During the course of the review, Irish Water provided this Office with the details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed him of her view that Irish Water was justified in refusing access to additional records on the ground that no further relevant records exist or could be found.  The applicant subsequently provided a further submission to this Office and having regard to that submission I consider it appropriate to conclude this review by way of a formal, binding decision. 

I have now completed my review of Irish Water’s decision. In conducting my review, I have had regard to the correspondence between Irish Water and the applicant as outlined above and to correspondence between this Office and both Irish Water and the applicant on the matter.

Scope of Review

This review is concerned solely with whether Irish Water was justified in refusing the applicant’s request for additional records apart from those already released, relating to the planting of a shelter belt at Clifden Wastewater Treatment Plant and relating to noise levels at the plant, on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, Irish Water provided details of its record storage practices and the searches conducted in response to the applicant’s request.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, Irish Water stated that no relevant records had been destroyed.  It outlined that its Asset Delivery department was responsible for the delivery of the Clifden project and, following a review of records within that department, relevant individuals in its Dublin and Castlebar offices were identified and contacted.  It noted that each individual confirmed whether they held any relevant records.

Irish Water stated that all files relating to the design, planning, and construction of the works, both electronic and hard copy, from the commencement of the design through to the date of the applicant’s request were considered within scope.  It outlined that searches were conducted by name of works, the consulting engineer, the works contractor, and all personnel involved.  It also stated that “noise” and “shelter belt” were used as key words and a review of all data obtained was undertaken to ensure that any errors were identified.

Irish Water outlined that all locations where records could have been stored were searched, including the office of the asset delivery headquarter team and the local capital delivery office.  It also confirmed that the offices of two relevant service providers were searched and that those companies were requested to produce all records, including relevant internal correspondence, where either “noise” or “shelter belt” were referred to.  Irish Water stated that all records provided to it were released to the applicant.

With respect to records relating to noise levels, Irish Water explained that noise levels are not recorded on a daily basis at Clifden Wastewater Treatment Plant and, as such, no daily records exist.  It stated that it is not the norm for continuous noise measurement to be provided and that noise levels would only be monitored on commissioning or in the event of a complaint.  It identified the locations where records relating to noise levels monitored on commissioning or in the event of a complaint would be held, stated that these were searched, and confirmed that the relevant record located was released to the applicant (Record 50).

The applicant is of the view that further records relating to his request should exist.  In particular, in his submission to this Office dated 23 October 2019, he referenced records relating to the service providers’ communications with contractors consulted/engaged to provide for the planting of the shelter belt and internal communications referencing any such contractors.  He suggested that the service providers should refine their search terms in order to locate those records.  It is important to note that the FOI Act does not require FOI bodies to conduct every search that an applicant deems necessary.  Rather, it requires the body to take all reasonable steps to ascertain the whereabouts of relevant records. 

Having considered Irish Water’s description of the searches undertaken, I am satisfied that Irish Water has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.  I find, therefore, that Irish Water was justified in refusing access to any additional 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 hereby affirm Irish Water’s decision to refuse the applicant’s request for access to further records relating to the planting of a shelter belt and relating to noise levels at Clifden Wastewater Treatment Plant under section 15(1)(a) of the FOI Act.

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