Whether the Council was justified in refusing access to further correspondence between the Council, the Port of Cork Company and their agents from 2008 onwards in relation to any aspect of ownership, development and/or maintenance of any part of Cobh’s Deepwater Quay

3 December 2020

Background

In a request dated 24 March 2020, the applicant sought access to all correspondence between Cork County Council, the Port of Cork Company, and their agents from 2008 onwards with regard to any aspect of ownership, development and/or maintenance of any part of Cobh’s Deepwater Quay, including the Five Foot Way and Cobh Cruise Terminal. In a decision dated 7 May 2020, the Council granted the applicant’s request, providing him with a number of relevant records.

On 3 June 2020, the applicant sought an internal review of the Council’s decision as he was of the view that more records should exist. Among other things, he noted that the earliest record received was dated June 2016 and he asked if any earlier correspondence existed. He also said no records were included concerning a specified development and he asked if there were any records relating to a scheduled meeting referenced in one of the records concerning traffic management.

In its internal review decision of 24 June 2020, the Council noted that earlier correspondence had previously been released to the applicant concerning a car park on foot of a separate request but it provided further copies of those records. On the matter of records relating to the specified development, it refused that part of the request under section 15(1)(d) on the ground that the records in question were publicly available on the relevant planning file. On the matter of the scheduled meeting, the Council said no relevant records exist as the meeting did not take place.

On 1 September 2020, the applicant sought a review by this Office of the Council’s decision. In his application for review, he alleged that a Councillor had confirmed that he had attended the meeting in question.

During the course of the review, Ms McCrory of this Office provided the applicant with details of the searches undertaken by the Council in an effort to locate relevant records and informed him of her view that the Council had taken all reasonable steps to ascertain the whereabouts of relevant records. In response, the applicant indicated that he does not accept the Council’s position and he made a further submission.

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 set out above. I have also had regard to the correspondence between this Office and bot the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any additional records coming within the scope of the applicant’s request, apart from those already released or publicly available, 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, the Council provided details of the searches undertaken to locate the records sought by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.

On the matter of the existence of records prior to 2016, the Council said in its submissions that the means of raising the issue of the Deepwater Quay would have been if it were raised at a meeting of either Cobh Town Council up to May, 2014, or Cobh Municipal District after that date. It said a full search was made of all records held, both physical and electronic, relating to these Council meetings from 2008 onwards and that apart from the records already released, no other records exist. It said an electronic search was conducted of its server network as this is where all records of the kind sought would be held. It said physical searches were conducted of the Municipal District office and the Cork City & County Archives, and the Municipal District Officer’s records were also searched.

In respect of the applicant’s contention that records should exist in relation to a meeting that took place on 26 October 2019, the Council said that elected members of Cobh Municipal District met with officials from the Port of Cork on the MV Norwegian Gateway. It said no officials from Cork County Council were present at that meeting and no record of what was said at that meeting was taken for or on behalf of the Council. It said that if records were prepared by the Port of Cork, they were not provided to Council.

In response, the applicant argued that the local councillors attend council meetings and are considered Officials. The Council’s statement that no officials from the Council were present is clearly a reference to Council staff members. The Council’s case is that the councillors attended the meeting in their capacity as elected officials and that any relevant records, if held by the councillors, would comprise their private papers.

Having regard to the details of the searches undertaken by the Council and to its explanation of the reasons for the absence of relevant records, I find that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of any 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.

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, under section 15(1)(a) of the FOI Act, to any additional records coming within the scope of the applicant’s request, apart from those already released or publicly available, on the ground that no further relevant records exist or can be found.

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 by the applicant not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator