Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a complaint regarding the installation of a solid fuel stove at a named property on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
7 April 2022
Background
The applicant owns an apartment in County Mayo. It appears that another apartment owner in the building installed a solid fuel stove in the early 2000s but that this only recently came to the attention of the Council, in particular Mayo County Fire Service. The Council, as the Fire Authority, is responsible for issuing Fire Safety Certificates and Fire Safety Compliance Certificates. It appears that the management company for the apartment complex complained to the Council about the stove and raised concerns that an insurance company refused to provide cover in 2020 as a result of the installation. Subsequently, the property owners who installed the stove corresponded with the Council. They engaged a technical adviser who was of the opinion that the stove installation was not a material alteration as defined under the relevant Building Control Regulations. The Council also received an ancillary certificate of compliance. Considering the information, the Council determined that the stove was in compliance with the relevant Building Regulations 1997-2014.
On 3 March 2021 the applicant submitted a request for "all the correspondence, submissions, deliberations and the final decision of all and by all the relevant parties pertaining to the decision to allow the use of a solid fuel stove at [a named apartment], contrary to the Fire Safety Certificate and Fire Safety Compliance Certificate".
On 31 March 2021 issued a decision in which it part-granted the request. It withheld certain records in whole or in part under section 37(1) of the Act on the ground that the withheld information was personal information relating to third parties. On 21 April 2021, the applicant sought an internal review of that decision. He stressed the importance of the residents understanding how the Council arrived at its decision and said that a number of the records withheld and listed in the schedule had already been shared with him by those third parties. On 14 May 2021 the Council varied its decision and released in full all but two of the records, which were released in part. It also released an additional record that had not previously been identified.
In response, the applicant emailed the Council wherein he argued that further relevant records should have been considered for release as he noted that he had received no internal Council documents. In response, the Council said it held no further relevant records. On 3 September 2021 the applicant sought a review by this Office of the Council's decision to refuse to release any internal documentation on the matter.
During the course of the review, and following correspondence with this Office on the matter, the Council identified and released a number of additional relevant records, namely diary entries and text messages held by a staff member who had recently returned from a leave of absence, and a file log. Subsequently, the Investigating Office provided the applicant with details of the Council's submissions as to why it considers that no further relevant records exist and she informed him of her view that the Council was justified in deciding that no further relevant records exist. The applicant made a further submission on receipt of those details.
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 parties as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found. The applicant considers that additional relevant records exist. Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to any further records relating to a complaint regarding the installation of a solid fuel stove at a named property, other than those already released during the processing of the request.
Preliminary Matters
It is important to note that the outset that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Accordingly, the appropriateness, or otherwise, of the actions taken by the Council in relation to complaints made concerning the installation of the stove is not a matter for consideration by this Office.
It is also relevant to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).
Analysis and Findings
Section 15(1)(a) of the Act for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and to decide whether that decision was 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As the applicant has already been provided with the details of the Council's submission, I do not propose to set it out in full here. In its submission, the Council provided a summary of its engagements both with the applicant and with the owners of the apartment who had installed the stove which resulted in the Council informing the owners that it was satisfied as to the owners' compliance with Article 11 of the Building Control Regulations and of his compliance with Part J of the Building Regulations 1997-2014.
The Council explained that all hard copy records are stored on the premises file for each premises which might already exist if a premises has a previous history with the Fire Authority or may be created on the receipt of a complaint or a requested inspection etc. It said that emails are printed and placed on the file at regular intervals during ongoing work on a file and checked to ensure there is no missing information. It said the file in question I still active due to the applicant's FOI request and is stored at Fire Brigade HQ. It said no records have been destroyed. The Council confirmed that it contacted the individuals who might hold records and carried out a search of the hard copy file. It said some verbal communications took lace internally following receipt of the property owner's technical adviser's opinion that the property was compliant with the relevant fire safety standards.
On the matter of the absence of a report of an inspection carried out by the Fire Officer on 25 August 2020, as raised by the applicant in his correspondence with the Council and with this Office, the Council said that following an inspection, a Fire Officer generally produces a post inspection letter highlighting any safety concerns observed during the visit. It said that in this instance, an inspection of the common areas of the apartment building was carried out and as no safety concerns were observed, there was no inspection report. However, the diary entry of the Fire Officer was released during the review.
In a phone call with this Office on 7 March 2022 the applicant raised concerns that an email to him dated 15 December 2020 was not released on foot of the request which, in his view, was evidence that adequate searches had not been conducted. He subsequently provided the investigating officer with a copy of the record. The Council provided this Office with a copy of records 9-10 as listed in Table B Schedule of Records marked as released at original decision stage. Having examined the records, it is clear that the emails provided by the applicant are records 9-10 and were released at original decision stage.
Following receipt of the details of the Council's submission, the applicant made a further submission to this Office, wherein he argued that further internal records exist. He expressed doubts that serious decisions concerning the increased risk of fire safety in an apartment block would not be the subject of documentation between the Council's Fire Service and the Building Control Officer. He argued that the Council must have had interdepartmental communications other than verbal when dealing with and deciding on an important issue.
It is important to note that the role of this Office is confined to determining whether the Council has carried out all reasonable steps to locate the records sought. The FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
In this case, while I can fully appreciate the level of importance the applicant attaches to the issue of the safety of the stove in his apartment building and why he might consider that additional internal documentation should exist, no evidence has been presented to this Office to suggest that such additional documentation does, in fact, exist. Having regard to the details of the Council's submissions and to its explanation as to why it considers that no further relevant records exist, I find that it has taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the act, to further relevant 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 FOI Act, I hereby affirm the Council's decision to refuse access, under section 15(1)(a) of the Act, to any further records relating to a complaint regarding the installation of a solid fuel stove at a named property, 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator
