Whether the Council was justified in refusing access to records relating to a derelict site notice issued for a named property

13 March 2020

Background

In a request dated 20 August 2019, the applicant sought access to all records that led to the Council identifying a named site as a potential derelict site. In a decision dated 16 September 2019, the Council refused the request under section 37(1) of the FOI Act on the ground that the relevant records relate to property owned by an individual other than the applicant.

On 17 September 2019, the applicant sought an internal review of the Council’s decision. He said he had made the request on the owner’s behalf and that he did not require access to personal information. He said he wanted to know if the Council initiated the process itself or on foot of representations made to it and by whom.

In its internal review decision of 9 October 2019, the Council stated that it had decided to vary the original decision and to grant access to the records sought on production of written authorisation from the owner of the site consenting to their release. On 10 October 2019, the owner of the site emailed the Council and asked it to inform the applicant and himself as to why a derelict site notification was put on his property. In response, the Council provided the owner with a legal authorisation form for completion and said it would release the records on receipt of the completed form. On 27 January 2020, the applicant sought a review by this Office of the Council’s decision. He said the owner was reluctant to sign the form provided by the Council.

During the course of the investigation with our Office, the Investigating Officer informed the Council of her opinion that the record, the Certificate of Inspection, provided to this Office was not within the scope of the request. Following this, the Council emailed the applicant on 11 March 2020, attaching a letter dated 26 February 2020, informing him that no records existed within the scope of his request. It outlined that the site was identified following verbal instructions from management within the Council. It clarified that a member of the public did not make a complaint regarding the site. The investigating officer wrote to the applicant on 11 March 2020 inviting him to make a submission. On the same day, the applicant indicated that he wished to proceed to a legally binding decision.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing access to records regarding how a named property came to be identified as a potential derelict site under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.

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, the Council said that the site was identified as part of a verbal management instruction to staff to examine properties in various villages and the surrounding area for potential derelict sites. It said that the named property was identified by a staff member after he undertook a visual inspection of the town and its surrounds. The staff member worked on and completed the statutory form/ site notice and submitted it to the Environment section of the Council. Once the site report was complete, a site notice was erected at the named property. The Council confirmed that it did not received a complaint from a member of the public. It said that for the reasons outlined no records existed within the scope of the review. It said that the record it had previously withheld under section 37 was outside the scope of the review.

Having considered the Council’s explanation, I am satisfied that no records as requested by the applicant exist. I find, therefore that the Council was justified in refusing access to records relating to the identification of a named site as a potential derelict site on the ground that no relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council in this case. I find that the Council was justified in refusing access to the records at issue 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