Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a notice served on the applicant in relation to his property on the basis that no further records exist or can be found
14 March 2022
Background
In a request dated 3 September 2020, the applicant sought access to records relating to a dangerous structure notice the Council served on him on 7 February 2007 requiring the removal of a two story structure on a property identified by a specific address (property A), that was to the rear of another property he owned (property B). In particular, he sought all memos and reports on property A, including all file notes and reports or memos prepared by the Council and particularly a named staff member. He also sought copies of any complaints made to the Council regarding both properties.
On 22 September 2020, the Council's Planning Enforcement Section issued a decision on the request. It said the decision related solely to records held by the Planning Enforcement Section of its Planning and Property Development Department only. It said that while it held records relating to the property B under four case file reference numbers, it did not hold records relating to property A. It explained that it had identified 4 records coming within the scope of the request, comprising print-outs of four planning enforcement file entries in the APAS planning system, and complaint emails for two of the files. It granted access to records 1 and 2, which comprised the print-outs, and it withheld certain information from records 3 and 4 relating to the complaints made, under sections 35(1) and 42(m)(i) of the FOI Act.
By letter dated 25 September 2020, the applicant sought an internal review of that decision, wherein he explained that the structure on property B behind property A is one and the same location. He argued that a range of additional records should have been released, including a structural report on the building and a file by a named staff member who he met on site around the time the 2007 notice issued.
In its internal review decision of 21 October 2020, the Council identified further records coming within the scope of the request. It granted access to a range of additional records with redactions made to a number of the records under sections 35(1) and 42(m)(i).
On 12 November 2020, the applicant sought a review by this Office of the Council's decision that no further files are held by its Dangerous Buildings Section. He noted from the records released that the dangerous structure notice originated from a complaint made to the Planning Enforcement Office and that the file in question was closed on 30 January 2007, but that the notice was served by the City Architect after that date. He said this suggested that the file of the city architect, Dangerous Buildings Section, would contain the remainder of the information sought.
During the course of the review, the Council located and granted access to three further planning enforcement records with some redactions. This Office also sought details of searches carried out by the Council in response to the request and provided those details to the applicant, who subsequently made further submissions on the matter.
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 Council and the applicant's comments in his application for review and in his further communications with this Office. I have also examined the records the Council identified as coming within the scope of the request. I have decided to conclude the review by way of a formal, binding decision.
Scope of Review
Having regard to the contents of the application for review submitted to this Office, it was apparent to the Investigating Officer that the applicant's primary concern was that the Council had not located all of the records that he believed should exist. As such, she sought to clarify with the applicant if he was also seeking a review of the redactions made to the records located and released. Despite repeated efforts to clarify the matter with the applicant, he failed to confirm whether he was seeking a review of the redactions made.
In the circumstances, the review has proceeded based solely on the issue he identified in his application for review, namely the Council's apparent failure to locate all relevant records coming within the scope of his request. While the Council did not explicitly say so in its decision letters, it has effectively refused to release any further relevant records on the ground that no further relevant records exist or can be found. The grounds for refusing a request on this basis are set out in section 15(1)(a) of the FOI Act.
Accordingly, this review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, any further records relating to the dangerous structure notice served on the applicant in 2007.
Analysis and Findings
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 role of this Office 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.
As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no relevant records exist. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review. In summary, the Council identified the Planning and Property Development Department and City Architects Department as potentially holding relevant records.
The Planning and Property Development Department conducted searches on its APAS planning system using the two addresses provided by the applicant as well as relevant variations of those addresses to find relevant file reference numbers. Using the relevant reference numbers, relating to four case files, records were printed from closed files and an open file was recovered from the Council's internal storage press. Closed file references were used to ascertain the relevant box number in the Council's archive. Those boxes were retrieved and searched for further relevant files, but no files were discovered.
The Council explained that key administration staff, with decision making responsibilities in the Enforcement Section with respect to the allocation and processing of all FOI requests, were consulted. The Council also consulted current Planning Enforcement Officers and administrative staff that had ever been assigned to the area concerned, as well the Planning Enforcement Manager. No staff could locate relevant records.
The Council explained that the Dangerous Buildings Section in the City Architects Department uses a DB Database which contains all relevant information, files and reports relating to properties attended to or inspected by the Council's Dangerous Buildings inspectorate within the Dublin City area. Each file listed under the exact address of the property/site, contains a series of headings under which various information is collated, including complaints, reports, DB notices, correspondence works, photos and structural engineer.
The Council said that the Dangerous Buildings Section searched its DB Database using the name of the premises and variations of the address but did not recover any relevant records. It said it searched in-house hard copy files maintained within the Dangerous Buildings Section but no relevant records were found.
The Council said it made a request to the City Architects administration section for any archived material which might be relevant. It said that while the search of the DB Database returned no relevant results, it sought the return of boxes that could contain the addresses i.e. addresses starting with the initials of the two addresses provided by the applicant. The Council said it also requested the box containing other addresses in order to search for nearby street names that a file might have potentially gone into, as locations that a map search identified as being in the general area. A box containing various DB addresses was also returned in case the records had been misfiled. The Council said five archive boxes in total were retrieved and searched but no relevant records were recovered. It said it approached Dublin City Archives to ascertain if it held any relevant records but it confirmed that it held no records relating to the premises.
The Council added that it consulted the DB Inspector named by the applicant in his FOI request to ascertain if he held any relevant records. The Inspector said he searched DB historical hand-written Log Books and his own personal handwritten Note Book from 2007. No relevant records were found. The Council explained that Inspectors do not hold separate files, hardcopy or softcopy, other than the files contained within the restricted access DB Database.
As the Council had also explained in its submissions that a file is opened within Dangerous Buildings Section when a notice such as the one served on the applicant in 2007 is issued, this Office queried how the notice could have been served without the existence of a file.
In response, the Council said the notice in question was issued in 2007 and that the electronic -˜database' system may not have been fully operational at that time and part hardcopy filing was utilised. It said the Architect-in-Charge at that time has since retired and so it cannot comment further on the recording system at that time. It acknowledged, however, that it is highly unusual for a DB notice to be issued without -˜back-up' files. It said the current Architect-in-Charge has no understanding as to why no relevant files, soft or hard copy, can be found at this stage. The Council suggested that it was possible that due to the fact that no further action was to be taken in relation to the notice, the relevant records may not have been retained, although it said there is no information to suggest that this would have been policy at the time of the issuing of the notice.
Following his consideration of the details of the Council's submissions, the applicant indicated that he did not accept the Council's explanations as to why no further records could be found. He argued that multiple files ought to have been kept and that it was not credible that the Council did not hold further records. He suggested that this office should interrogate the Council further in relation to whether it had misplaced all files from the relevant year or whether it was his file alone that had been misplaced. The Council responded to queries by this Office to the effect that it did hold other files from 2007, but could not locate the applicant's file after reasonable steps to search for it.
While I understand the applicant's frustration, it is important to note that the FOI Act 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. What the Act requires 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. It is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
Having considered the details of the searches undertaken by the Council, I am satisfied that it has carried out all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Council was justified in refusing the applicant's request for additional records on the ground that no such records exist or can be found.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse access to further records falling under the scope of the applicant's request under section 15(1)(a) of the FOI Act.
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
