Whether Cork City Council was justified in refusing access to copies of records referring to the investigation of the Ombudsman for Children’s Office into living conditions on a particular halting site

7 February 2022

Background

In a request dated 31 May 2021, the applicant sought access to copies of all records held or referring to the investigation of the Ombudsman for Children’s Office (OCO) into living conditions at a halting site in the local authority area, from the Council. This request covered the period of 1 May 2021 to 31 May 2021. In a decision dated 25 June 2021, the Council informed the applicant that the request was refused under section 15(1)(a) of the Act, on the basis that the records requested did not exist. The applicant sought an internal review of the Council’s decision on 29 June 2021. In his application, he highlighted an article, which had been published in the Irish Examiner, referencing the Council’s work on the issue. On 20 July 2021, the Council issued its internal review decision, which annulled the original decision and part granted the request. The Council refused access to other records under section 37(1) (personal information), and section 15(d) of the FOI Act on the basis that the information concerned was already in the public domain. On 23 July 2021, the applicant applied to this Office for a review of the Council’s decision. In his appeal, he argued that it was his belief that all records held had not been scheduled or released.

During the course of the review, this Office’s Investigator sought submissions from the Council on the searches undertaken to locate the relevant records and a summary of those submissions were provided to the applicant. In response, the applicant queried certain aspects of the searches carried out by the Council. Following this, the investigator submitted a further request for clarification to the Council as a result. In its response, the Council stated that it had released all records in its possession relating to the halting site in question.   

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 relevant parties, including the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As set out above, the applicant believes that further records exist that have not been scheduled or released. Therefore, this is a matter for examination under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Analysis and Findings

Section 15(1)(a)

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 after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

When examining a matter under section 15(1)(a), we will generally have regard to matters such as the steps actually taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. In this case, the Council argued in its submissions that the records sought do not exist within the time-period set out by the applicant.

In his correspondence with this office, the applicant argued that he believed further records relevant to his request existed and should have been declared to him. He referenced the Council’s initial decision to refuse his request under section 15, and its subsequent decision on internal review to release a letter from the CEO, gave the applicant significant concerns in relation to this.

During the course of the review, the Council provided submissions to this Office, in which it provided details of the relevant searches carried out, and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with details of those searches, I do not propose to repeat them in full here. In summary, it said that the Housing Directorate, and more specifically the Traveller Accommodation Unit (TAU) within the Directorate, dealt with the original request and that records were checked for the time-period identified by the applicant. At internal review stage, the Offices of the Chief Executive and Assistant Chief Executive were also searched for any records that fell within scope, and as a result records were identified and released to the applicant.  The Council said that both hard and soft copy files were searched onsite, however, it did not provide further details of how searches were conducted, or what search terms were used when searching.

In relation to a specific query relating to a response to the Minister’s letter, the Council stated that there were no further records within the timeline of this request relating to the matter, and that it was satisfied that all relevant records had been provided to the applicant.

During the course of correspondence with this Office in relation to his appeal, the applicant highlighted the Council’s failure to address certain matters, which had been raised. He also referred to an email, which had issued on the 14 June 2021, within the Council when dealing with the applicant’s request. The email in question states that for the time period in question no records exist; however, it also stated that the records are highly confidential and that the Council would not be inclined to release the records in case the requester decides to change his timeframe, as any records would identify the halting site concerned.

The applicant also drew attention to three articles, which had been published on 24, 27 and 28 May respectively, in which the halting site in question was identified. The media articles provide further detail on contents of the report, and mentions the Council’s response to the report’s recommendations, which are described as positive. The OCO’s report was published on 24 May 2021, and the comments in relation to the Council’s response would indicate that there was some communication between the Council and the OCO, before 31 May 2021. The article published on 28 May 2021 also stated that the Council responded to questions from the Irish Times in relation the report.

In a further email to this Office, the appellant queried whether the Council conducted searches in the press/communications office of the Local Authority, or whether searches of mobile phones, private email addresses or messaging services had been conducted. He also queried whether it was possible that a lengthy letter from a Council Chief Executive to a Minister of State could materialise without input or discussions on the contents. He raised the issue of whether consultations took place with staff who had worked in this area over the years, or whether there could be any draft documents or minutes or further materials which might be within scope.

As set out above, further clarification was sought from the Council in relation to each of the matters raised by the appellant. In the Council’s response, it stated that all records had been released for the time-period identified in the request. It went on to say that a senior official in the Council with a detailed knowledge of the halting site in question prepared the letter for consideration by the Chief Executive, and that this was forwarded to the relevant Minister. No further detail in relation to searches was provided.

The onus is on the Council to satisfy this Office that its decision was justified, namely that it was justified in finding that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken. In light of the fact that it has not provided sufficient information about the steps taken to search for relevant records, I am simply not in a position to find that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records.

I would also like to re-iterate that there are references in media articles to communication between the Council and the press in relation to the matter within the timescale of the applicant’s request. While I accept that this does not necessarily mean that a record was created, the Council did not address whether or not the press or communications office in the Council was approached or searched for relevant records when asked by this Office’s Investigator. I believe that this would have been a reasonable search to carry out in the circumstances. Therefore, I find that it has not justified its decision to refuse access to any further relevant records on the ground that no further records can be found. 

I consider 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 it must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s decision.

When making its new decision I would remind the Council of the detailed supporting documentation on processing FOI requests available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual, which contains, amongst other things, a sample schedule of records and guidance on preparing schedules.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Cork City Council’s decision to refuse the applicant’s request, under section 15(1)(a) of the FOI Act for further records relating to the OCO’s report between the dates specified by the applicant. I direct the Council to conduct a fresh decision – making process.

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.

Deirdre McGoldrick

Senior Investigator