Whether the Council was justified in refusing access to additional records relating to the North Lotts and Grand Canal Dock Planning Scheme 2014 and a May 2019 report prepared by a named consultancy firm in which it conducted an urban scale and planning height review of that planning scheme

9 June 2021

Background

All references to the applicant in this decision can be taken to refer to the applicant and/or his solicitor as appropriate.  On 22 November 2019, the applicant submitted a multi-part request seeking access to records relating to the North Lotts and Grand Canal Dock Planning Scheme 2014 (the Planning Scheme) and a May 2019 report prepared by a named consultancy firm in which it conducted an urban scale and building height review (the Review) of that Planning Scheme. Specifically, he sought access to: 

a) “any and all emails, file notes, memos and correspondence providing instructions to or briefing [named individual/consultancy firm] in relation to the Planning Scheme or the Review;

b) any and all emails, file notes, memos, and correspondence relating to role of [named individual/consultancy firm] in researching, advising, drafting, preparing, modifying or finalising the Planning Scheme or the Review;

c) any and all emails, file notes, memos, and correspondence providing instructions to or briefing [named individual/consultancy firm] in relation to the strategic environmental assessment ("SEA"), environmental impact assessment ("EIA"), appropriate assessment ("AA"), ecological impact assessment or any other environmental assessments related to the Planning Scheme or the Review;

d) any and all emails, file notes, memos, and correspondence relating to the role of [named individual/consultancy firm] in researching, advising, drafting, preparing, modifying or finalising the SEA, EIA, AA, Ecological Impact Assessment or any other screening assessments related to the Planning Scheme or the Review;

e) any and all emails, file notes, memos, and correspondence relating to any period of employment, whether contractual or otherwise, of [named individual/consultancy firm] with the Council in any capacity whatsoever;

f) any and all emails, file notes, memos, and correspondence relating to any individual employee(s), committee(s) or group(s) within the Council responsible for the involving, engaging or employing [named individual/consultancy firm] in relation to both the Planning Scheme and the Review;

g) any and all emails, file notes, memos, correspondence, eTender documentation and submissions, Quick Quote documentation and submissions, and any other procurement documentation whatsoever related to the tender process for both the Planning Scheme and Review;

h) any and all decisions, determinations or recommendations made by the Council in relation to the carrying out of the Planning Scheme or the Review;

i) any and all decisions, determinations or recommendations made by the Council in relation to the instruction or briefing of [named individual/consultancy firm] to undertake the Planning Scheme or the Review; and

j) any and all workings, drawings, visual aids or any other materials employed by [named individual/consultancy firm] in relation to the preparation of the Planning Scheme or Review”

On 25 February 2020, the Council issued a decision in which it purported to grant access to all relevant records (61 records). On 21 July 2020, the applicant sought an internal review of that decision, on the ground that the Council had not considered all relevant records for release. He provided a number of examples of records not received. He also noted that while he had been provided with emails and attachments to those emails, he had also sought information in other forms – file notes, memos, correspondence (to include text messages), eTender documentation and submissions, Quick Quote documentation and submissions, procurement documentation, workings, drawings, and visual aids. 

The Council treated this as a new request. On 18 September 2020, the Council issued a decision wherein it granted access to nine pages of records comprising extracts from the May 2019 report prepared by the consultancy firm and a link to a Share File folder containing maps/drawings already in the public domain. It addressed each of the examples provided by the applicant in his letter of 21 July 2020, refusing access to any further relevant records on the grounds that that they do not or no longer exist. It also confirmed that the named individual/consultancy firm had been contacted in relation to the matter. On 9 October 2020, following correspondence with this Office, the applicant sought an internal review of that decision. 

On 29 October 2020, the Council issued its internal review decision wherein it affirmed its original decision on the ground that no further relevant records exist.  The applicant sought a review by this Office of that decision on 4 November 2020.

During the course of this review, and following a number of engagements with this Office, the Council identified further relevant records and released them, with some duplication of records already released, to the applicant on 28 March 2021. Subsequently, the applicant indicated to this Office that he remained of the view that there were additional records not received, including records other than in the form of email correspondence, records regarding meetings between the Council and the named individual/consultancy firm, records concerning the role of the named individual/consultancy firm and, in relation to certain emails provided, emails prior to/in response to those emails, as well as attachments and parts of those emails.

I have decided to bring this case to a close by way of a formal, binding decision. 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

In his letter of 21 July 2020, the applicant clarified that he was seeking a review of the Council’s decision of 25 February 2020. He requested that “a further review is carried out in order [to] ascertain which records have been omitted and to ensure that access is granted to all records requested…”. I am satisfied that it was not his intention to limit the scope of the request by providing examples of records that had not been released.

I note that the application for internal review was submitted after the four week time-frame generally allowed for making such applications. However, the Council has discretion to accept late applications. While it instead treated that letter as a new request, that does not alter my view that the letter of 21 July 2020 cannot be regarded as limiting the scope of the original request. Instead, it seems to me that it must properly be interpreted as a request for any records not originally considered for release, having regard to the wording of the original request. In any event, I also note that the Council referred to both requests in its internal review decision dated 29 October 2020.  

Accordingly, the scope of this review is concerned with whether the Council was justified in refusing the applicant’s request for access to additional records relevant to parts (a) to (j) of his request dated 22 November 2019 as outlined above other than those already released to him on the ground that no further relevant records exist or can be found.

Preliminary Matter

In his application to, and correspondence with, this Office, the applicant raised concerns about the manner in which the Council processed his FOI request and how it processes FOI requests generally.  It is important to note that this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how FOI requests are handled by the Council. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the Act.  All previous such investigations have involved more than one public body.  However, I would like to make the following comment.  The piecemeal manner in which the Council has released records in this case is unfortunate and has clearly given cause for the applicant to have concerns as to the completeness of the information released.

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 its record storage practices and the searches conducted to locate the records sought by the applicant. It stated that the Planning Department maintains records of Strategic Development Zones (SDZ) and Planning Schemes permanently, in accordance with the National Retention Policy for Local Authorities. It explained that while an SDZ planning scheme is being prepared, it is practice for staff to have their own working records and for a masterfile to be created which holds all main milestone records electronically and in hard copy. It said that staff are responsible for ensuring that all relevant records are provided to the masterfile and outlined that it would be highly unlikely that any relevant records had been destroyed.

The Council said that physical office areas and the computer records of the Planning Administration Section and the staff members on the SDZ Planning Team were searched. It noted that the searches included the planning drive, where electronic working records would be located and the “Plsecret” drive, where masterfile records would be located.  It outlined that the search terms used included name of the relevant individual/consultancy firm, SDZ, Docklands SDZ, North Lotts SDZ, Grand Canal SDZ, North Lotts, Minister Eoghan Murphy, and Building Heights.   

The Council noted that the relevant individual/consultancy firm was contacted and that it carried out electronic searches of its computer systems, including relevant electronic job folders and email inboxes. It said that search terms used included the relevant job numbers, SDZ, Planning Scheme, Dublin Docklands, Building Height, John O’Hara, and Dublin City Council.  It also outlined that hard copy folders located at the consultancy firm’s office were searched. 

Subsequent to the Council’s release of additional records located during the review on 28 March 2021, some of which related to part (h) of the applicant’s request and the majority of which comprised emails (and attachments), the Investigating Officer sought clarification from the Council as to whether or not, in addition to part (h), further records relevant to parts (a) to (j) of the applicant’s request dated 22 November 2019 had been included within the scope of the searches carried out and described to this Office.

In its response dated 16 April 2021, the Council provided two further records relevant to part (h) and also indicated that, in essence, it had limited the searches undertaken to the records specifically referred to in the request dated 21 July 2020. As outlined above, it is my view that those records were merely examples of the additional records sought. Accordingly, it appears to me that the Council took an unduly narrow interpretation of the applicant’s request dated 21 July 2020 and ought to have considered any additional records relevant to parts (a) to (j) of his request dated 22 November 2019.

In the circumstances, I am not in a position to find that the Council carried out all reasonable searches in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.  As such, I simply cannot find that section 15(1)(a) applies in this case.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council in its entirety, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  I appreciate that remitting the case back to the Council causes further delay for the applicant.  However, I do not believe that there is an alternative appropriate course of action to take in this instance.

In processing the request afresh, the Council must identify all relevant records that come within the scope of the applicant’s request.  It should also consider the two records provided to this Office on 16 April 2021. In light of comments made by the Council, it appears that a number of relevant records may be in the public domain.  If the Council seeks to rely on section 15(1)(d), which provides that access to information may be refused where the information is already in the public domain, it should ensure that it specifically identifies which records are in the public domain.  The Council must consider each record for release under the terms of the Act.

Finally, it seems to me that it might be useful for the Council to engage further with the applicant in the first instance before considering his request afresh to clarify if it can be refined to identify the precise nature of the additional records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council in this case. I direct the Council to conduct a new decision-making process on the applicant’s 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