Whether the Council was justified in refusing access to certain records and information relating to the installation of the Broadband Connection Point at a named location on the ground that one of the records sought does not exist and that the other withheld records and information do not fall within the scope of the applicant’s request

13 September 2021

Background

The Broadband Connection Point (BCP) initiative was established in order to ensure that remote areas were provided with some access to high-speed broadband while waiting for the rollout of the National Broadband Plan to reach their local areas.

On 29 January 2021, the applicant submitted a request to the Council for records relating to the BCP at a specified location, including the application in respect of the installation of the BCP at the specified location in September 2020, all correspondence between the company responsible for the specified location (the company) and the Council, documentation to and from the Department of Rural and Community Development, approval for this BCP at the location and the public consultation process that was completed.

The Council issued its decision on 24 February 2021 in which it said it had decided to grant the request. The schedule of records released to the applicant described the records released as (1) Department Correspondence and (2) Company correspondence.

The applicant sought an internal review of that decision on 15 March 2021, wherein she noted that certain information had been redacted from the records released. She noted in particular that a public servant’s name and email address had been redacted throughout the records and pointed to attachments referred to in emails that had not been released.

The Council issued its internal review decision on 1 April 2021, in which it varied the original decision. It acknowledged that the schedule had been completed incorrectly, and a revised schedule was prepared and issued to the applicant. This revised schedule listed 33 records, with 16 records released in full and 17 released in part. Sections 37(1) and 32(1)(c) of the FOI Act were cited as justification for the redaction of the relevant records. It released in full the records that had originally contained redactions of a public servant’s name and email address. In relation to the additional records including email attachments sought by the applicant, the Council stated that there were no records to release or that the records did not relate to the information requested in the FOI request. There was further correspondence between the applicant and the Council after the review decision, wherein the Council maintained its position. On 9 April, 2021. the applicant sought a review by this Office of the Council’s decision.

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 submissions made by the applicant, submissions made by the Council, correspondence between the Council and the applicant, and correspondence between the parties and this Office. I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision. When referring to the records at issue, I have adopted the numbering used in the revised schedule that was issued following internal review

Scope of the Review

Further to consultation with the applicant, the Investigator identified three outstanding issues in relation to her FOI request.

• Record 25: the redaction of points 6 and 7 in an email dated 22 October 2020 under section 32(1)(c) of the FOI Act;
• Record 28: attachments to email dated 16 March 2020 not released on the grounds that they do not relate to the FOI request;
• Service Level Agreement(s): the Council did not release a signed Service Level Agreement(s) with the company on the ground that there is no record of this document. While the Council did not refer to section 15(1)(a), this is the appropriate section of the Act as the Council has effectively refused to release the record on the basis that it does not exist.

During the course of the review, the Council stated that upon further review it no longer deemed section 32(1)(c) to be relevant to Record 25 and instead it argued that the redacted information falls outside the scope of the applicant’s request.

It is important to note that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I deem it appropriate to consider the Council’s revised position in respect of the redacted information.

Accordingly, this review is concerned with whether the Council was justified in its refusal to release points 6 and 7 in record 25 and the attachments to record 28 on the ground that the relevant information and records fall outside the scope of the applicant’s request and whether it was justified in its refusal to release a copy of the signed Service Level Agreement under section 15(1)(a).

Preliminary Matters

It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Furthermore, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy me that its decision was justified.

Analysis and Findings

Before considering the substantive issues, I wish to comment on the Council’s processing of the request and the manner of its engagements with this Office during the review, both of which I have found to be unsatisfactory.

While the Council acknowledged at internal review stage that the schedule of records issued with the original decision had been completed incorrectly and that the request had not, in fact, been granted in full, the revised schedule provided contained a numbering system for the additional records released while a third version of the schedule was sent to this Office. This was confusing and made it difficult and time consuming to establish the scope of the review. Furthermore, the Council’s internal review decision letter did not contain details of the applicant’s right to apply to this Office for a review of its decision, as required by section 21(5)(f) of the Act.

As the Council has been subject to the provisions of the Act since 1998, I am sure it is aware of the existence of detailed supporting documentation on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual for processing requests which contains, amongst other things, a sample schedule of records and guidance on preparing schedules, and sample decision letters. I urge the Council to take appropriate measures to ensure that its decision makers are familiar with the CPU guidance materials and that they are used when processing requests.

Moreover, during the course of the review, the Investigator invited the Council to make focused submissions in the course of this review, with specific questions to be answered and references to sample questions available on this Office’s website relevant to the exemptions claimed. While a brief submission was prepared by the Council, it did not address the questions in a comprehensive manner. For example, no details were provided around the searches conducted in response to the applicant’s FOI request.

The Council’s staff member was courteous and helpful in dealing with the Investigator’s enquiries and I appreciate that FOI bodies are under various pressures. Nonetheless, compliance with the FOI Act is a statutory obligation. It is incumbent on FOI bodies to put the resources in place to ensure that they process FOI requests and reviews properly.

Record 25

Record 25 is an email dated 22 October 2020 sent from the Council to a representative of the company.  The email has the subject line “[Site] BCP Finding (sic) Allocation” and the body of the email consists of eight bullet points, with the redaction of points 6 and 7. As outlined above, the Council’s position is that the redacted information falls outside the scope of the applicant’s request.

The Council stated that the BCP was funded directly by the Department of Rural and Community Development with National Broadband Ireland as the main contractor, but that the items listed in points 6 and 7 were funded through the Accelerated COVID Town and Village Renewal scheme and that they were not related to the installation of the BCP. 

The investigator sought further clarification in relation to the Council’s position. In reply, the Council stated that the FOI request was for records in relation to the “installation of the Broadband Connection Point” which relates to physical infrastructure and equipment required to install a Broadband Connection Point and that the FOI request did not refer to funding. It said the items listed in point 6 of record 25 qualified for separate funding as the site was a location that was a BCP; however, it stated that the funding related to the site “operating as a location for broadband access and not the installation of same". Similarly, it stated that point 7 did not relate to the installation project. The Investigator asked why these two points were deemed to be outside the scope of the FOI request while the remainder of the email had been released and, presumably, had been accepted by the Council as falling within the scope.  The Council stated that at internal review stage it had only reviewed points 6 and 7 and did not review the rest of the email. However, at this point having looked at it again, it was of the view that more of the email should have been redacted as other points were not related to the installation of the BCP either.

Having examined the precise wording of the applicant’s request, I am satisfied that she was seeking access to information relating to the installation of the BCP, including the original application, correspondence in respect of the approval for, and installation of the BCP at the location in question, and any public consultation relating to the selection and/or approval of the location. I accept that the information redacted from record 25 relates to funding that is not connected with the installation of the BCP but, instead, arises due to the fact that the site is operating as a location for broadband access. I find, therefore, that the redacted information falls outside the scope of the applicant’s request and as such, the decision to redact that information does not fall for review by this Office.

Record 28 attachments

The Council sent copies of the attachments to Record 28 to this Office. Having examined the attachments, I am satisfied that they do not relate to the installation of the BCP and that the Council was justified in refusing access to the records on the ground that they fall outside the scope of the applicant’s request.

Service Level Agreement(s) - Section 15(1)(a)

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.

The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

It is the applicant’s position that two signed Service Level Agreements (SLAs), one between the Council and the company and one between the Council and the Department, should exist and should have been released. She stated that it was her understanding that no funding would have been released by the Department without such agreements signed and in place.

During the course of the review, the Council provided the applicant with a copy of signed agreement between the Council and the Department. Record 32, which was released, included a draft template Service Level Agreement (SLA) between the Council and the company. However, it is the Council’s position that no signed final version exists. It explained that a draft local SLA agreement was sent to each site on 12 February 2020 but was in draft format as the Department had not finalised the document. It said it has not received the final version from the Department, that is an action still outstanding and when that it will be sent to each owner for signing when it is received. I accept the Council’s explanation. As such, I find that the Council was justified in refusing access to a signed SLA between the Council and the company on the ground that no such record exists.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse, under section 15(1)(a), the applicant’s request for a signed SLA between the Council and the company on the ground that the record sought does not exist and in redacting certain information from record 25 on the ground that it falls outside the scope of the request.

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