Whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to certain records relating to the development of 5G infrastructure, equipment and services in County Wicklow on the ground that no relevant records exist or can be found

4 Noember 2020

Background

On 31 October 2019, the applicant, through his legal representative, submitted a request to the Council for all records relating to the development of 5G infrastructure, equipment or services in County Wicklow. All references to communications with the applicant in this decision should be taken to include communications with his legal representatives. Specifically, the applicant’s request was in 5 parts and sought access to the following:

1. All documentation relating to any environmental impact assessments carried out by Wicklow County Council in the County of Wicklow relating to the effect of 5G, Wi-Fi, wireless radio frequency/electromagnetic frequencies including its impact on bees, birds and all wildlife, flora and fauna;
2. All documentation relating to any human biological impact assessment/studies carried out by Wicklow County Council or on their behalf concerning the County of Wicklow relating to the effect of 5G, Wi-Fi, wireless RS/EMF radiation including its impact on children, the elderly and hypersensitive persons;
3. All documentation relating to any Wi-Fi or wireless connected public lighting systems installed/serviced by Wicklow County Council in the County Wicklow including smart related technology public devices such as but not limited to smart bins;
4. All documentation relating to any EU grant applications made by or sought by Wicklow County Council relating to 5G, or Wi-Fi or Wireless RS/EMF; and
5. All documentation relating to all or any health complaints made to Wicklow County Council relating to 5G, or Wi-Fi or wireless RF/EMF.

In a decision dated 27 November 2019, the Council part-granted the request. It released records relating to a system installed to control public lighting to improve energy efficiency and reduce energy costs and records relating to a notice of motion discussed at a meeting of the Council on 7 October 2019. It also provided a link to the minutes of that meeting as published on its website. It refused the remaining parts of the request under section 15(1)(a) of the FOI Act, on the ground that no relevant records exist or could be found.

On 6 December 2019, the applicant, through his representative, sought an internal review of the decision to refuse parts 1, 2, 4, and 5 of his request. He also asked for clarification in relation to information which had been released to him in response to part 4. On 20 January 2020, the Council affirmed its original decision to refuse parts 1, 2, 4, and 5. On 20 July 2020, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, Ms Whelan of this Office provided the applicant with details of Council’s submissions regarding the searches it had conducted in response to his request. She informed him of her view that 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 the records sought did not exist. She invited the applicant to make a further submission on the matter. In response, the applicant indicated that he did not wish to withdraw his application for review.

I have now completed my review in this case. I have decided to conclude the review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and Council as set out above and to the communications 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 access, under section 15(1)(a) of the Act, to certain records coming within the scope of the applicant’s request for records relating to the development of 5G infrastructure, equipment and services in County Wicklow on the ground that the records sought do not exist or cannot be found.

Preliminary Matters

Before I address the substantive issues arising, I would like to address a number of preliminary matters. First, while the Council’s internal review decision letter of 20 January 2020 referred to section 15(1)(c) as the ground for refusal of the relevant parts of the request, the legislative provision cited in the letter was, in fact, section 15(1)(a). Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found while section 15(1)(c) provides for the refusal of a request where the nature or number of the records concerned is such that granting the request would cause a substantial and unreasonable interference with the body’s work.

In his application for review, the applicant suggested that the Council’s reference to section 15(1)(c) in the internal review decision indicates that the Council holds relevant records. During the review, the Council confirmed that the reference to section 15(1)(c) in the internal review decision was a typographical error. For the avoidance of doubt, I am satisfied that the reference to section 15(1)(c) was simply an error and that no inferences can be drawn from that error on the question of whether or not the Council holds relevant records.

Second, the applicant suggested that the Council failed to have adequate regard to the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information when processing the request. Directive 2003/4/EC (the AIE Directive) has, as its key provision, the establishment of a right of access to environmental information held by public authorities.

The European Communities (Access to Information on the Environment) (Amendment) Regulations 2007 to 2018 (the AIE Regulations") give effect to the AIE Directive in Ireland. The access regime provided for in the AIE Regulations is a separate, standalone, access regime. The request made in this case was under the FOI Act. There is no requirement on public bodies to have regard to the provisions of the AIE Regulations when processing requests made under the FOI Act.

Thirdly, as outlined above, during the course of the review Ms Whelan of this Office provided the applicant with details of Council’s submissions regarding the searches it had conducted in an effort to locate relevant records. In response, the applicant sought a copy of the Council’s submissions. He argued that without access to the actual submissions made, he was being denied a reasonable opportunity of commenting on the submissions rather than this Office’s summary of those submissions.

In reply, Ms Whelan of this Office explained that the statutory review undertaken is not adversarial in nature and as such, it is not the practice of this Office to exchange submissions between parties to a review. She further explained that before any binding decision is reached, we take care to ensure that the parties are notified of material issues arising for consideration. She said that in this case, she was satisfied that all material points raised by the Council were brought to the applicant’s attention in the usual manner.

Ms Whelan noted that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, she drew the applicant’s attention to the following comments of Quirke J, in The National Maternity Hospital v the Information Commissioner [2007] 3 IR 643;

'I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures.'

In light of the applicant’s request, Ms Whelan agreed to extend the period for making a submission by one week, to 30 September 2020. To date, no additional submissions have been received.

As submissions made by parties to a review may contain sensitive information that may not be appropriate for disclosure to others, submissions are not exchanged as a general rule. We do, however, notify the relevant parties to a review of new material issues arising for consideration insofar as they affect the interests of the parties concerned.

Material issues are issues that are relevant to the outcome of the review. Such issues involve information of significance that is likely to influence the decision the Commissioner will make. Any new matter of which a party to a review is unaware and which is likely to cause the Commissioner to make a decision adverse to the interests of that party is communicated to the party concerned. Such matters would generally include applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and any new facts and new legal developments which are likely to have a significant bearing on the outcome of the review.

Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case.  In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned.

I have examined Ms Whelan’s email of 9 September 2020 wherein she provided the applicant with details of the Council’s submission. I am satisfied that the applicant was on notice of all material issues of relevance to the review and was afforded an appropriate opportunity to make submissions based on his consideration of those material issues.

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.

As Ms Whelan of this Office has previously outlined to the applicant, the Council said that as it determined that multiple Departments may hold relevant records, its FOI Section issued an internal memo to the Director of Services of each Department and the Group Senior Executive Officers (SEOs) to request them to conduct comprehensive searches for records falling within the scope of the request. The memo noted that both electronic and non-electronic records and records held on formal files, temporary folders and in any other manner should be included. The memo also asked that the FOI section be informed of any records known of but held elsewhere that would come within the scope of the request.

The Council noted that the minutes of the Council meeting of 7 October 2019 referred to the Broadband Manager. It said the Broadband Manager, who is longer employed with the Council, was not consulted as part of the request but that the Head of Information Systems to whom the Broadband Manager reported directly was consulted.

The Council said each Director of Services and SEO carried out searches on their own restricted area on the server for electronic records and they also conducted searches on non-electronic folders held. It said the key word search used was “5G” as this was the main focus of the request. It said other key words in the request were deemed too generic to return relevant records.

The Council added that the Chief Executive Order register was also examined for relevant records. The Council explained that reports or assessments of such technical nature would require the engagement of consultants. In line with the Council’s procurement policy, such engagement would require a Chief Executive Order, regardless of the value of the contract. The Council searched the Chief Executive Order register from 1 January 2017 to the date of the request, as it determined from an internet search that 5G was developed at the end of 2018, early 2019. It said it searched a total of 1,883 orders from this period and that no Orders to appoint consultants were identified. It said it considers that this supports the indication from the various Departments that no relevant records exist.

On the matter of grant applications, the Council explained that any grant applications it makes for funding are recommended by the Director of Services or SEOs before submission to the relevant funding body. It said that as no funding applications as sought under part 4 of the request were made, no relevant records exist.

On the matter of complaints made, the Council said that communications received by the Council are not centrally recorded but correspondence was searched for by the Director of Services and SEOs and no relevant records were found. It said that as the Department of Communications, Climate Action and Environment (the Department) and the Commission of Communications Regulation (ComReg) are the bodies with statutory responsibility in the area, it is reasonable to expect that no complaints were made to the Council.

In summary, the Council’s position is that, based on the searches it carried out and the fact that the Department and ComReg are the bodies with statutory responsibility in the area, it holds no other records coming within the scope of the request. I note that the documentation released to the applicant contains details of the areas for which the Department and ComReg have responsibilities.

In his application for review to this Office, the applicant argued that it is necessary for the Council to clarify whether it is saying in absolute terms that no records exist. I disagree. It is important to note that the test in section 15(1)(a) is whether all reasonable steps have been taken to ascertain the whereabouts of relevant records. The provision does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.

It is also possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. Furthermore, the Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. The question I must consider in this case is whether the Council has taken all reasonable steps to locate relevant records.

The applicant also said he was puzzled at the reference to the broadband manager not having been consulted on the basis that s/he is no longer employed by the Council. He suggested that the former manager was “a most obvious source of information and a legitimate avenue of enquiry”. While I accept that there may be occasions where it would be reasonable to expect an FOI body to contact former staff who may be in a position to throw light on the existence and/or location of records, I do not consider this to be such a case. In my view, it was reasonable for the Council to instead consult with the Head of Information Systems to whom the Broadband Manager reported directly. I am satisfied that if the former manager would have had knowledge of the existence and/or location of relevant records, so too would the Head of Information Systems, given the nature and subject matter of the records sought.

The applicant further argued that as a minimum, another independent expert should review the methodology but said his clear preference is to engage his own expert. Presumably, the methodology referred to is the search methodology the Council employed in searching for relevant records. Under section 22(12)(b) of the Act, a decision to refuse a request is deemed not to have been justified unless the body can satisfy this Office that the decision was justified. Where section 15(1)(a) is at issue, the body must satisfy this Office that it has taken all reasonable steps to locate relevant records. I do not accept that an independent review by any other expert party is necessary for this purpose.

Having considered the nature of the records sought and the Council’s description of the searches undertaken and of the consultations that took place with members of staff, I am satisfied that it has carried out all reasonable steps in an effort to locate relevant records. I find, therefore, that the Council was justified in refusing access to the records sought on the ground that the records cannot be found or do not exist.

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 further records relating to the development of 5G infrastructure, equipment and services in County Wicklow on the grounds that the records sought cannot be found or do not exist.

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