Whether the Council was justified under section 15(1)(a) in refusing access to further records sought by the applicant concerning road works near his property

22 February 2023

Background

In a request dated 23 June 2022, the applicant sought access to all -�data regarding the extent of [-�] recent road works-� commenced, ongoing and/or completed within a specified area, which I understand is adjacent to his property.

I understand that the Council engaged with the applicant to clarify the road works to which his request related.

In a decision dated 4 July 2022, the Council stated that as it had released records concerning the same subject matter to the applicant in response to a previous FOI request, it had only considered records created from 14 December 2021 to 23 June 2022. It refused his request under section 15(1)(a) on the basis that no further records relating to the road works all in the specified area existed. On 11 July 2022, the applicant requested an internal review of the Council-�s decision.

On 2 August 2022, the Council varied its original decision by refusing access to records under section 15(1)(i) of the Act, on the basis that the records requested had already been released to the applicant. On 7 October 2022, the applicant applied to this Office for a review of the Council-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Council-�s submissions where it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records existed. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did.

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 in support of its decision and to the applicant-�s submissions and communication with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

The Council refused the applicant-�s request at internal review stage under section 15(1)(i) of the FOI Act on the basis that it had previously released the records sought to the applicant. However, the applicant is of the view that additional records other than those released in response to his earlier request should exist. The Council-�s position is that no further relevant records exist. This is, essentially, a refusal of his request under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is solely concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to additional records coming within the scope of the applicant-�s request, other than those already released.

Preliminary Matters

The applicant-�s request in this case appears to be a request for information rather than for access to records that are held. It is important to note that the FOI Act provides for a right of access to records held by FOI bodies (section 11 of the FOI Act refers). Requests for information, as opposed to requests for records, are not valid requests under the FOI Act. The FOI Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

I also note that in his correspondence with this Office during the course of the review, the applicant raised a query relating to the run off from the sewage treatment area for a particular cottage located near his property. However, this matter was not included in the applicant-�s original request. It is not possible to broaden an FOI request to seek further records beyond those covered by the original request.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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. Our role 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 their decision and 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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can 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. Furthermore, 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.

As I have outlined above, the Council provided this Office with details of searches it said that it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. 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.

The Council essentially stated that the applicant-�s request was refused because all relevant records were released to the applicant in response to his previous FOI request on 23 November 2021. The Council said that it also provided a second copy of these records to the applicant on 27 September 2022. The Council further stated that it carried out a search for records relating to his request dated from 14 December 2021 to 23 June 2022 and it was unable to locate any further records. The Council stated that searches were carried out of electronic records on the Council-�s shared drive, relevant staff members-� personal hard drives and email inboxes of relevant staff using various keywords. The Council also stated that searches were carried out within local offices for hardcopy files. The Council-�s position is that no further relevant records exist or can be located.

In relation to licenses or permits issued for construction adjacent to the applicant-�s property, the Council stated that the construction concerned related to a water connection for a nearby cottage. The Council-�s position is that, in such cases, the tenant is responsible for making a request to Irish Water for this connection. It said that as a result, it does not hold any records relating to this matter. In any event, the Council also stated that the water connection concerned was carried out on a road behind the property in question, and not on the road specified by the applicant in his request. Furthermore, while the Council stated that a contractor carried out additional work relating to storm water drainage from the cottage on its behalf, its position was that it -�does not issue permits or licenses to itself-� for these kind of works.

Upon receipt of the Council-�s submissions, the applicant provided further submissions to this Office. The applicant queried the lack of records relating to the run off from the sewage treatment area from the nearby cottage. In its submissions to this Office, the Council provided a copy of a letter from the Council to the applicant to demonstrate that this issue was addressed by way of correspondence with the applicant and not in response to his FOI request. In any event, as noted above, this matter is outside of the scope of the applicant-�s FOI request and will not be considered as part of this review.

The applicant also stated that he did not receive any copies or information on build drawings of the works carried out. The Council-�s position is that, due to the small size of the scheme, no drawings were created.

On the matter of whether the Council holds further relevant records, it is important to note that in a review of a refusal under section 15(1)(a) of the Act, the question I must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. Depending on the circumstances, this Office may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.

It is also important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

I have had regard to the details of the searches provided by the Council, to the records previously released to the applicant and to its explanation why additional relevant records do not exist. In the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the ground that no further relevant 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 FOI Act, to additional records relating to the applicant-�s request on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

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Sandra Murdiff
Investigator