Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant's request for photographs and records contained in an enforcement file, on the ground that the records sought could not be found after all reasonable steps to ascertain their whereabouts were taken

23 May 2022

Background

In a request dated 23 June 2021, the applicant sought records pertaining to the unauthorised developments/enforcement files at a named location by a named individual from 2010 to present. On 19 July 2021, the Council part-granted the request. It included a schedule describing the records identified as coming within the scope of the request, the decision taken in respect of each record, and the grounds for withholding certain records, in full or in part.

The applicant sought an internal review of that decision. He said he was seeking photographs that were taken on 13 April 2010 as referenced in one of the records released and a copy of a solicitor's letter that he believes was sent to the Planning Authority regarding the enforcement proceedings on the unauthorised development, the most likely date being between 20 August 2010 and 2 September 2010. On 6 September 2021, the Council refused the request for the photographs and the solicitor's letter pursuant to section 15(1)(a) of the FOI Act on the ground that the records could not be found. On 2 November 2021, the applicant sought a review by this Office of the Council's decision.

During the course of the review, the Council provided submissions wherein it outlined the searches undertaken in an effort to locate the records sought. Details of those searches were provided to the applicant and he was invited to make further submissions on the matter. Further submissions were duly received, following which further clarifications were sought and received from the Council.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the communications 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 the Review

This review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to photographs relating to an enforcement file and a related solicitor's letter, on the grounds that the records sought do not exist or could not be found after all reasonable steps to ascertain their whereabouts were taken.

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 role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. We 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 said that while copies of electronic records held have been released to the applicant, it cannot find the relevant hard-copy enforcement file and the photographs sought would have been attached to that hard copy file. It said that prior to 2019, all enforcement correspondence and documents were stored in hard copy format. It explained that upon the enforcement case being closed, the file was stored within the Planning Office for a period of time and then later moved to an off-site storage building. It added that although some aspects of the file would have been held in electronic form (i.e. planner reports), the enforcement file in question would have been a hard copy file. It said two separate searches were undertaken of planning enforcement files in the off-site storage building, to no avail. While it said it was not aware of any instruction to destroy documents relating to enforcement files, it noted that under the National Retention Policy for Local Authorities, closed enforcement files should be retained for seven years. It said the relevant enforcement file was closed in 2010.

The Council added that it was unable to confirm how many photographs were taken. It said the photographs were taken by a named Planner. It said it believed the photographs would have been printed and placed on the hard copy file. It said that according to the Planner, the photographs would likely have also been saved on his office computer hard drive as his practice was to store on the hard drive but not on common drives due to issues at the time with the Council's common drive capacity). It said, whoever, that the Planner's office computer hard drive has been replaced at least once since.

On the matter of the solicitor's letter sought, the Council said it could neither confirm nor deny if such a letter was sent or received by the Council as the hard copy file cannot be located. It said all available enforcement records relating to the matter have been searched, along with the two aforementioned searches of planning enforcement files in an off-site storage building, a search of hard drives was also undertaken, and a review by the relevant Planner of his records. It added that while all incoming post records are now recorded, this was not the case in 2010.

On the matter of the specific searches conducted for the enforcement fie, the Council said two separate searches were undertaken of planning enforcement files in the off-site storage building. It said every shelf in the off-site storage facility where planning enforcement files would be stored were searched, followed by a search of all shelving containing planning files and records. With regards to the photographs sought, the Planner searched his hard drives and any common drives, however as mentioned, the Planner's office computer hard drive has been replaced at least once since the relevant report was prepared. The Council's IT section undertook a search of e-mails for both the report of the date in question and any attached photographs and the alleged solicitor's letter using software that enables deleted e-mails to be retrieved. The search for the solicitor's letter was undertaken using a specified surname referred to in document title for the dates in question. The Council added that the current Enforcement Planner searched his records both on Council hard-drive and any hard copy records. A search was also carried out of Planning Section hard drives and any common drives. The search words used were a specified surname, a specified area, and the relevant planning enforcement file reference.

Following engagements between this Office and the applicant in respect of the Council's submissions, this Office sought further clarifications from the Council on the matter. In response,

the Council explained that it does not now have access to the camera that was used to take the photographs as it was replaced following damage but that in any event, the photographs would have been uploaded to the Planner's computer and deleted from the camera to free up memory space. In relation to the replacement of hard drives, the Council said that if information on a hard drive needs to be retained, it us usually transferred to the hard drive of the replacement computer and if it is no longer needed, the information is deleted and the computers are then reused or sent for recycling.

This Office also sought clarification of whether copies of the enforcement file and/or photographs may have been forwarded to An Bord Pleanála at any stage, in light of the applicant's comments that several related appeals had been taken. In response, the Council said that several cases had been determined by An Bord Pleanála, namely five Section 5 referrals and two planning application appeals. In relation to a specific reference number cited by the applicant the Council said that related to a Section 5 declaration application made on 21 June 2010. It said that following a review of that Section 5 application, it discovered attached copies of photographs taken of works ongoing to the relevant structure, presumably in April 2010. It said the copies and related Section 5 documents are available to the applicant for inspection. It subsequently forwarded copies of the photographs to the applicant.

While it is unfortunate that the Council cannot locate the relevant hard-copy enforcement file, it is important to note that there will be occasions where records known to have existed at some point simply cannot be found. What the FOI Act requires in such cases is that the FOI body takes all reasonable steps to ascertain the whereabouts of the records sought. This is an express acknowledgement of the fact that there are limits to the measures public bodies must take to locate records sought by applicants under the Act. There is no requirement on FOI bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having considered the Council's submissions, it seems to me that it has, at this stage, taken all reasonable steps in an effort to locate the records sought but has been unable to do so. Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the grounds that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I note that the Council has undertaken that should the enforcement file be located at any stage following this review, it will arrange for the immediate release of the records to the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse, under section 15(1)(a) of the FOI Act, the applicant's request for photographs or a letter contained in an enforcement file.

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