Whether the Council was justified in refusing access to correspondence relating to submissions for expressions of interest for social housing at a named site on the ground that no records exist or can be found after all reasonable steps have been taken to locate them

11 December 2019

Background

The Council has an open-ended expression of interest advertised for developers to submit proposals for potential social housing developments in Westmeath. In a request dated 22 June 2019, the applicant sought access to any correspondence relating to submissions for expressions of interest for social housing between 2016-2018 at a named site. The Council did not make a decision within the four-week timeframe.

The applicant sought an internal review of the deemed refusal of his request. In its internal review decision of 31 July 2019, the Council purported to grant the request but released no records. Instead, it explained that no expression of interest was lodged by any developer in respect of the site in question. It added that an expression of interest was lodged with a voluntary housing association but that it did not have a copy of the expression of interest. On 24 October 2019, the applicant sought a review by this Office of the Council’s decision. He argued that relevant records should exist.

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 correspondence between the applicant and the Council as described above, and to communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal binding decision.

Scope of Review

The Council effectively refused the applicant's request on the ground that no relevant records coming within the scope of his request exist. This review is therefore concerned with whether the Council was justified in refusing the applicant’s request for records of correspondence regarding expressions of interest for social housing at a named site on the ground that no records exist or can be found after all reasonable steps have been taken to locate them.

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 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.

During the course of the review, the applicant provided this Office with a copy of a recent decision made by the Council which suggested that the Council held certain correspondence in connection with expressions of interest concerning the site in question.

The investigating officer queried the differences in the decisions with the Council. It appears that the Council took an unduly narrow view of the scope of the request by treating it as a request for copies of expressions of interest as opposed to a request for correspondence relating to expressions of Interest. The Council agreed that upon reflection, its response to the other request suggest that records coming within the scope of the applicant’s request do, indeed, exist.

It is clear to me, therefore, that the Council did not take all reasonable steps to ascertain the whereabouts of relevant records coming within the scope of the applicant’s request and that it was not justified in refusing the request. I consider that the appropriate course of action to take is to annul the Council’s decision, the effect of which is that the Council must consider 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 the Council’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act. I hereby annul the decision of the Council to refuse the applicant’s request for any correspondence relating to expressions of interest for social housing at a named site. I direct the Council to conduct a fresh decision-making process in respect of the applicant’s request.

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