Whether the Council was justified in refusing access to records relating to unauthorised development on lands adjacent to the applicant's property

7 December 2023

Background

This case relates to a Council-owned property in Dungarvan, adjacent to the applicant's property. The applicant and a number of other members of the public have submitted complaints to the Council concerning alleged breaches of the Planning and Development Act 2000 due to unauthorised development on the property in question. The applicant also had a complaint considered by the Office of the Ombudsman (the Ombudsman) concerning the Council's handling of the planning enforcement matter. 

In a request dated 2 December 2021, the applicant sought access to all correspondence, including any reports, sent on behalf of the Council to the Ombudsman which relate to him and or the Ombudsman's investigation of his complaint. In a decision dated 20 January 2022, the Council refused the request under section 30(1)(a) of the Act. On 25 January 2022, the applicant sought a review of that decision, following which the Council affirmed its refusal of the request. On 4 March 2022, the applicant applied to this Office for a review of the Council's decision.

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 applicant's comments in his application for review and to the submissions made by the Council in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it provided to this Office during the course of the review.

Analysis and Findings

Following our acceptance of the application for review, this Office asked the Council to provide copies of the subject records in order to progress the review. In response, the Council provided a schedule of 130 records it had identified as coming within the scope of the applicant's request. It does not appear that this schedule had previously been given to the applicant. In addition, the Council indicated that it had revised its position and was prepared to release a number of records. On 24 October 2022 the Council released in full records 7, 9, 14, 19, 21, 22, 23, 35, 36, 45, 47, 50, 52, 54, 61, 65, 66, 80, 81, 82, 90, 91, 92, 93, 97, 98, 109, 122 and 123. In addition, it granted partial access to records 1, 2, 3, 5, 15, 49 and 96 with certain third party information redacted under section 37. It refused access to the remaining records under sections 35 and 37. 

In addition, in the course of his correspondence with this Office, the applicant has accepted that as the following records relate to complaints submitted by other third parties, he is no longer seeking access to them: records 30 to 34, 37 to 43, 112 and 119.  The applicant also indicated that he was satisfied with the partial access granted to records 2, 3 and 5. 

In the course of further correspondence with the Council, the Investigator sought confirmation that the 130 records as supplied to this Office had in fact been forwarded to the Office of the Ombudsman as part of its review. After a considerable delay, the Council forwarded a file containing 51 records to this Office on 15 September 2023. However, it did not include a covering letter explaining the status of those records. While in some cases these records corresponded with the records previously supplied to this Office, it would appear that some records were included that had not previously been included on the schedule of 130 records.

In addition, this second tranche of records also included a number of records which post-dated the applicant's request and included correspondence from this Office to the Council.  Moreover, while a number of the records appear to correspond with records which had been scheduled initially, certain records appeared to have pages missing and no explanation was given as to why this was the case. Most relevant for the purposes of this review is the fact that this group of records contained six email exchanges between the Council and the Office of the Ombudsman (records 45 to 50), while only two of these records were identified in the first tranche of records. No new or updated schedule was provided nor was any attempt made to explain why certain previously unidentified records appeared to have been included in the file of records, nor why certain records which had previously been identified, appeared to no longer form part of the file.  In addition, the Council provided no explanation why only certain pages of records previously supplied in full appeared to be included. 

All of this leaves me in a position where I find it very difficult to progress the review in a meaningful way.  The piecemeal manner and apparent contradictory manner in which records have been forwarded to this Office, without clear explanations as to how specifically they relate to the applicant's request, means that I cannot with any clarity determine what records before me fall within the scope of the applicant's request.  The applicant is seeking access to the correspondence the Council sent to the Office of the Ombudsman in connection with his complaint. With respect to a substantial number of the records supplied, it is not apparent to me how such records would fall within the scope of this request, nor has the Council explained how they might.

It is not the role of this Office to act as a first instance decision maker on the question of whether a right of access to records exists or, indeed, whether they come within the scope of a request. In addition, there have been considerable delays in obtaining appropriate responses from the Council to queries from this Office at every step in the process. In such circumstances I am satisfied that any attempt to further clarify the position with the Council would only further lengthen the matter for the applicant.  

In the circumstances, I consider that I have no other option open to me other than to direct the Council to undertake a fresh decision making process in respect of the applicant's request.  The effect of this is that the Council is required to make a new, first instance, decision on any of the records that come within the scope of the request.  The applicant will have a right to an internal review and a review by this Office if they are not satisfied with the Council's decision. 

In considering these records afresh, I would urge the Council to pay close attention to the wording of the applicant's request in identifying records falling within its scope. I would also remind the Council that it has a statutory obligation to process requests and to issue decisions within the time-frames set out in the Act. Furthermore, when issuing decisions on requests, the Council must provide reasons for refusing requests, details of the provisions of the Act on which the refusals are based, and findings on any material issues relevant to those decisions (sections 13(2)(d) and 21(5)(c) refer).

The Council should also be aware that the Minister for Public Expenditure, NDP Delivery, and Reform has published a Code of Practice pursuant to section 48 of the Act. Under section 48(3), FOI bodies must have regard to the Code in the performance of their functions under the Act. Among other things the Code provides that an FOI body should provide a schedule of records with its decision, setting out details of those records being released in full, those to which partial access is being given, and those being refused, and setting out the reasons why access has not been granted in full or in part and referencing relevant sections of the Act where refusals are made. 

Finally, for the benefit of the applicant, I must apologise for the long time it has taken for this Office to complete its review in this matter. I appreciate that the outcome is not ideal as I am conscious that the effect of my decision is to further prolong matters for him.  However, in the circumstances of this case and given the challenges this Office experienced in getting meaningful responses from the Council, I consider that I have no other appropriate option open to me. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision and direct it to undertake a fresh decision making process in respect of records which are covered by the applicant's request, bearing in mind my comments as outlined above.    

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