Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing to release further records relating to a planning application on the grounds that no further relevant records exist or can be found
5 March 2021
Background
This review concerns a request for records relating to a planning application for a proposed new development. The location of the proposed development was in an area zoned for Marine Related Tourism. It is my understanding that there were communications between the Council and Fáilte Ireland in relation to this location. The Council appointed an independent panel to review the application (the Independent Review Panel). In line with the recommendation of the Independent Review Panel, the Council granted planning permission. This decision was overturned on appeal to An Bord Pleanála.
On 16 December 2019, the applicant requested “records relating to planning applications P16/17/017, P17/864 and associated Material Contravention that don’t appear to be readily available in the public domain.” His request included records relating to the Independent Review Panel, the planning process, meetings/communications between the Council and Fáilte Ireland, delegations of powers, functions and duties, a public communication by the Council on 1 October 2019, an access road for the development and correspondence between the company applying for planning and the Council.
On 15 January 2020, the Council issued its decision. The Council identified 66 records as falling within the scope of the applicant’s request. It granted access to records 1-61 and it refused access to parts of records 62-66 under sections 36 and section 37 of the FOI Act. On 13 February 2020, the applicant applied for an internal review of the Council’s decision “due to the substantial amount of missing information in the replies to my FOI request.”
On 5 March 2020, the Council affirmed its original decision and stated that it had located one further record, which it released to the applicant. The Council did not address the applicant’s claim that further records falling within the scope of his request ought to exist. On 29 June 2020, the applicant sought a review of the Council’s decision by this Office, on the basis that the Council had failed to locate all of the records falling within the scope of his FOI request.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Council and to the communications between this Office and both the Council and the applicant on the matter.
Scope of Review
In communications with this Office, the applicant confirmed that he is seeking a review of the Council’s decision solely on the basis that the following records falling within the scope of his request records ought to exist:
(i) records in relation to prior projects/matters on which any of the three members of the Independent Review Panel had been engaged by the Council prior to their appointment on the Panel, and
(ii) records of meetings and communications between members of staff of Fáilte Ireland and the Council in relation to the planning application.
This review is, therefore, solely concerned with the question of whether the Council was justified in refusing to release additional records falling within the narrowed scope of the applicant’s request under section 15(1)(a) of the FOI Act.
Analysis and Findings
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.
The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).
Applicant’s Submissions
The applicant states that as part of his FOI request, he sought all records relating to the three members of the Independent Review Panel. He says he received details related to their fees/invoices in their roles as members of the Panel but received no records of any of their projects with the Council prior to their appointment. He states the first panel member is a director of a planning consultancy company, which was involved in preparing a report in relation to a proposed Economic Growth Cluster for the Council. He states that this panel member would have had contact with the Council’s in relation to this report and other planning matters. He states that the second panel member has been regularly used by the Council on interview boards over a number of years. He states that the third panel member is a partner in a company of Urban Planners/Architects who had dealings with the Council in 2018 in relation to a project referred to as the Castlebar Project. The applicant contends that records in relation to these projects/matters should have been included in the Council’s FOI response.
The applicant says he made a separate FOI request to Fáilte Ireland on 16 January 2020, for all records relating to its decision to support the planning application at issue. The applicant provided this Office with a summary of the records provided by Fáilte Ireland compared with those provided by the Council and he highlighted eight records that he believes the Council ought to hold, which fall within the scope of his request. The applicant says one of the records is an email in relation to the development sent from the Council’s CEO to Fáilte Ireland’s CEO on 7 November 2018. He states that between the date of this email and 15 November 2018, Fáilte Ireland changed its view from opposing to supporting the development. He contends that there should be notes of telephone conversations between both CEOs, which would show why Fáilte Ireland changed its view.
Following the applicant’s submissions, this Office requested the Council to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant.
Council’s Submissions
The Council states that it administers FOI requests centrally through its FOI Unit. It states that once an FOI request is accepted, the FOI Unit identifies appropriate record holder(s), i.e. Heads of Sections/Functions and appropriate relevant staff. These record holders are contacted and they conduct searches for records. The Council states that following an examination of all records located by these staff, a decision is issued by the FOI Decision Maker.
In relation to records concerning the Independent Review Panel, the Council states that some Section/Function Heads were not identified in the original search as the FOI request referenced specific planning applications and did not, at the time, seem pertinent to other projects or matters. The Council states that this is the reason why certain records such as records concerning the HR function and the selection of interview panels and records relating to the Castlebar Project were not identified in the original search.
The Council states that following further searches it located additional records concerning the procurement, peer review competition and selection process for the Castlebar Project. The Council provided the applicant with copies of these records. It also provided the applicant with information from its Architects Department outlining all previous occasions when members of the Independent Review Panel were commissioned by that Department, the projects they were commissioned on and fees paid to the panel members. The Council also provided details of attendance by panel members on interview boards for Council vacancies. The Council states that work in relation to the report on the proposed Economic Growth Cluster did not take place until after the independent review panel had concluded its work. It states that these record fall outside the scope of the applicant’s request which referred to prior projects/matters.
In relation to communications with Fáilte Ireland, the Council states that the first four records highlighted by the applicant contain correspondence between members of staff of Fáilte Ireland and the Council in relation to the planning application. It states that there is no mandatory requirement on its staff to record each individual engagement in relation to a planning application and in practice minor queries are not recorded on the planning file due to the volume of queries involved. It states that copies of the first two records were not placed on the planning file for this reason. It states that following further searches the first record was located and released to the applicant; however the Council was unable to locate the second record.
In relation to the third record, the Council states that it received two letters from the same member of staff in Fáilte Ireland on the same date and relating to the same planning application. It states that the wrong letter was uploaded to the planning file due to human error. It states that when it became aware of this shortcoming it was addressed and a copy of the letter was provided to the applicant. The Council states that as the fourth record was available on the public planning file it was not provided to the applicant following his FOI request.
The Council states that it has located and released records which which show why Fáilte Ireland changed its view from opposing to supporting the development. It states that records 5-8 highlighted by the applicant contain correspondence between Fáilte Ireland’s CEO and the Council’s CEO in relation to the development. It states that following further searches by its IT Department the seventh record was located and released; however, it was unable to locate the other three records. It states that this may be due to some data gaps that arose during the migration of servers. It says after it moved to a cloud based system of archiving emails, certain emails were permanently removed from the cloud after 30 days. It states that when it discovered this issue an alternative archiving software system was sourced. The Council has provided this Office with a detailed report from its Head of Information Systems outlining the steps taken to search for records using an advanced eDiscovery solution. I have not outlined the process in this decision, however the applicant has been provided with the details of the search process.
Analysis and Findings
As a preliminary point, I note that in his application to this Office, the applicant has made certain allegations of wrongdoing or interference in the planning process. I understand that these matter have also been raised in a separate complaint to the Office of the Planning Regulator (OPR). It is not part of the role of this Office to adjudicate on how FOI bodies perform their functions generally, nor is it within my remit to make findings of fact or otherwise in relation to these specific allegations.
The applicant also alleges that records were deliberately withheld following his original FOI request and his internal review request. The Council states that it was never its intent to obstruct the applicant from seeking records. The Council has provided this Office and the applicant with a detailed submission in relation to the original and further searches conducted by various sections/functions of the Council and which contains the additional records located. I have carefully considered this submission and the applicant’s submission and I am satisfied that there is no information before me from which I could conclude that the Council deliberately set out to withhold records in this case.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.
I understand the applicant’s position that further records ought to exist and I acknowledge the specific examples that the applicant provided in support of this assertion. It is my view that the Council provided reasonable responses to these points. As set out above, the Council followed up the specific points raised by the applicant with the relevant sections/divisions internally and released additional records during the course of this Office’s investigation. It is regrettable that the searches in this case were piecemeal in nature. Nevertheless, while it would have been preferable for all relevant records to have been identified and released at the time of the Council’s first instance decision, I am satisfied that these shortcomings have now been resolved.
Taking into account the search details provided by the Council, the records provided to this Office and its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Council has now conducted reasonable searches to locate the records sought and that no additional records exist or can be found. Accordingly, I find that it was justified in its decision to refuse to release additional records on the basis of section 15(1)(a) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision in this case. I find that the Council was justified in refusing access to additional records falling within the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that they either do not exist or cannot be found after reasonable searches have been carried out.
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.
Deirdre McGoldrick
Senior Investigator