Whether the Council was justified in refusing access to additional records relating to three named housing estates under section 15(1)(a) of the FOI Act, on the ground that additional records sought do not exist

5 August 2020

Background

This review is related to a decision I issued on 21 January 2020 in Case 58192 concerning the Council and the applicant. In that case, the applicant submitted a detailed request to the Council relating to a named housing estate and comprising primarily a list of questions relating to maintenance and grass cutting in the estate and nearby flooding. He also sought certain records relating to a walkway between the estate and an adjoining estate.

In essence, the Council refused parts of the request on the ground that they were not valid requests for records and it refused access to other parts on the ground that it did not hold any relevant records.

While I annulled the Council’s decision, I did not consider it appropriate to simply direct the Council to process the request afresh, given my view that the majority of the request was not a valid request as the applicant was essentially seeking answers to specific questions concerning the actions the Council had taken in relation to the estate and reasons for those actions. Instead, I directed the Council to engage with the applicant and to offer assistance to help him submit a fresh request that is in accordance with the provisions of the Act.

On 5 February 2020, the applicant submitted a fresh request to the Council. He sought access to all records regarding flooding of the amenity park within a named estate and he also asked what action had been taken to alleviate flooding in the amenity park.  He referenced statements made by a member of the Council’s Parks Division in records he had received previously that referred to drainage issues in the estate and surrounding area and sought all records relating to those statements. He also sought all records on grass cutting, litter picking, and flower pot maintenance in three named estates. He also asked specific questions regarding those matters.

On 4 March 2020, the Council issued a decision on the request. In relation to the drainage/flooding issue, it said there were no further reports furnished to the Environmental and Recreation Functional Committee and that information regarding draining had been provided in response to his earlier request. In relation to the grass cutting/maintenance, it provided responses to the questions asked but did not provide access to any relevant records.

On 9 March 2020, the applicant sought an internal review of Council’s decision, following which the Council varied its original decision. It stated that in the main, the questions and records were addressed and provided in the original decision or in previous requests made. In relation to the request for records relating to the flooding of the amenity park, it provided two excerpts from a report by the Office of Public Works (OPW) concerning the “Lower Lee Flood Relief Scheme” which show preferred options for the area at issue. It explained that it is the OPW, and not the Council, that has responsibility for flooding projects. It refused access to records concerning engagements with elected representatives regarding flooding o the estate under section 15(1)(a) on the ground that no such records could be found as they did not appear to have been retained. On 8 April 2020, this Office received an application from the applicant for a review of the Council’s decision.

During the course of the review, the Council provided this Office with details of the searches carried out to locate all relevant records. Ms Whelan of this Office outlined the details of those searches to the applicant, informed him of her view that the Council was justified in deciding that no further relevant records exist or could be found and offered him an opportunity to make any further comments he wished. To date, the applicant has made no further submissions and 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 the Review

The scope of this review is concerned solely with whether the Council was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to additional records relating to a number of named housing estates on the ground that no further relevant records exist or can be found.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish to make the following preliminary comments. First, I note that in his application for review, the applicant made a number of comments in relation to the Council’s responsibilities in relation to his estate and he has suggested that this Office should take enforcement action to make the Council carry out certain work concerning the maintenance of the estate where he resides and the drainage of the park in the area. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the Council dealt with him, this Office has no role in examining the appropriateness of those actions or to take the enforcement action sought.

Secondly, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.  Therefore, any information sought by the applicant has been interpreted as a request for records containing such information.

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 provided details of 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, the Council identified the various locations that were searched and outlined its view that no further records exist. It said it consulted relevant staff members involved in relevant divisions of the Council. It said it searched mail meters, e-folders and paper records for relevant records using a number of key terms.

The applicant, in a submission to this Office, provided emails from Council staff members stating that the Council’s Drainage Department would submit a report on the flooding of one of the named estates to a meeting of the Council’s Environment and Recreation Function Committee, and that a named staff member was corresponding with the OPW on the issue.

In its submissions, the Council explained that the matter of flooding in the named estates is under the remit of the OPW. It explained that the named staff member from the Council corresponded with the OPW by phone and no records of the correspondence was retained. It explained that the Council’s Drainage Department did not prepare a report into the flooding issue and the issue was not discussed at the aforementioned meeting of the Environment and Recreation Function Committee. The Council stated that the only report prepared on the issue was the OPW report, extracts of which it provided to the applicant.

With regard to records relating to grass-cutting and maintenance of the three named estates, the Council explained that, as grass maintenance is routine, seasonal and large-scale across the City, it does not create records falling under the scope of the applicant’s request. The Council explained that it consulted with staff with previous and current responsibility for estate maintenance in order to provide information to the applicant in its original decision.

The general thrust of the Council’s position is that no further relevant records exist apart from those already released. While the applicant may be unhappy with the Council’s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist. 

Having considered the details of the searches undertaken, and the Council’s explanations, I am satisfied that the Council 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 the Council 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 the Council’s decision to refuse the applicant’s request for additional records generally relating to three named housing estates 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