Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to additional records relating to correspondence concerning a specified waste services company (Company X), other than those already released in full or in part in response to the applicant-�s previous access requests

24 October 2023

Background

In a request dated 21 January 2023, the applicant sought access to -�all communications [Mr Y] Waste Regulation Officer Donegal Co Council and Donegal Co Council had in relation to [Company X]-� from 1 September 2016 to 1 March 2017. Company X is a particular waste services company. On 23 January 2023, the Council informed the applicant that it was refusing his request on the basis that it related to records which he had previously sought from the Council.

The applicant requested an internal review of the Council-�s decision on 25 January 2023. On 6 March 2023, the Council affirmed its original decision. On 3 April 2023, the applicant applied to this Office for a review of the Council-�s refusal of his request.

During the course of this review, the Investigating Officer asked the applicant to clarify his reasons for seeking a review of the Council-�s decision. She asked him whether his position was that he had not received the records the Council stated had been previously released, or if he believed that further records existed relating to his request. In response, the applicant indicated that he was seeking access to records of all Council communications, not just those of Mr Y, for the relevant period. He said that he sought correspondence from Company X, and relevant records held by all Council departments, including handwritten notes, phone logs and internal emails. He also said that he believed that only -�a fraction of the requested information [had been] supplied-� by the Council and that further records should exist.

On foot of the applicant-�s response, the Investigating Officer informed him that this review would proceed on the basis that he was solely seeking access to additional records, other than those already released in full or in part in response to his previous access requests. He did not object to this.

Having regard to the applicant-�s comments, the Investigating Officer formed the view that section 15(1)(a) of the FOI Act was relevant and invited the Council to make submissions in relation to the steps taken to locate records in this case. The Council provided further submissions in this regard. On foot of subsequent queries from this Office, the Council clarified that not all of the records considered in relation to the applicant-�s previous access requests had been released to him in full. It stated that some had been released in part. However, it maintained its position that all records relating to the matters concerned had been located and considered in response to the applicant-�s previous access requests.

The Investigating Officer provided the applicant with a summary of the Council-�s submissions where it outlined the searches undertaken to locate further records and its reasons for concluding that no additional records existed, other than those previously considered for release. 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. I have also had regard to the applicant-�s comments in his correspondence with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As the applicant is aware, this review proceeded on the basis that he was solely seeking access to additional records, other than those already released in full or in part in response to his previous access requests.

In his correspondence with this Office during the review, the applicant referred to records released during the course of a related review - OIC Case OIC-137111-X2T6C0. He objected to the Council withholding information from those records. However, I am satisfied that the Council-�s decision in relation to these records was considered in full in case 137111. Furthermore, I understand that while the applicant had a right to appeal this Office-�s decision in that case if he was unhappy, he has not exercised it. Accordingly, those records will not be considered as part of this review.

Having regard to the above, this review is concerned solely with whether the Council was justified in refusing access to any further records coming within the scope of the applicant-�s request under section 15(1)(a) of the FOI Act, other than those released in full or in part in response to his previous access requests, on the basis that no further relevant records existed or could be found once all reasonable steps had been taken to locate them.

Preliminary Matters

During the course of the review, the applicant indicated that he disagreed with the description of information or records as relevant or otherwise, as set out in correspondence from this Office providing details of the Council-�s submissions. He also contended that he should be allowed to decide whether or not information or records were relevant. To clarify, in the context of a review by this Office, the term relevant records is generally used to describe records within the scope of an FOI request. Accordingly, any reference to -�relevant records-� in correspondence from this Office during this review can be taken as referring to records covered by the applicant-�s original request in this case.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) 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 FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. 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 noted above the Council provided this Office with details of the searches it undertook in an effort to locate additional records covered by the applicant-�s request and of its reasons for concluding that no further records exist or can be found. As also noted above, an outline of the Council-�s submissions has been provided to the applicant and he has made comments in response. While I will not set out both submissions in detail, I can confirm I have had regard to them for the purpose of this review.

In its submissions to this Office, the Council indicated that it had initially interpreted the applicant-�s request as solely seeking access to records between Mr Y and Company X, which it said would be held by the Council-�s Environment section. Its position was that all records relating to this part of the applicant-�s request had been considered for release in response to his previous requests. I note that the FOI request referred to in its original decision, where the applicant sought access to -�all records -� relating to [Mr Y] and his associations and dealing with this Waste Facility Review Application by [Company X]-�, was refused on the basis that records had been released in respect of previous FOI and AIE requests. I also note that this Office affirmed the Council-�s decision in that case (OIC Case OIC-134527-W1H1P2 refers).

During this review, the Council acknowledged that the applicant-�s request could be read as including records held by other parts of the Council, but its position was that the only two sections that would hold relevant records were Planning and Environment. It stated that all of the applicant-�s previous requests had been in relation to Company X and the renewal of a Waste Facility Permit, and that no other section was involved in the issue of renewal permits of this type. The Council confirmed that no other departments had been asked to search for records relating to the applicant-�s request in this case.

The Council stated that it had received a total of 13 access requests from the applicant in relation to records concerning Company X and Mr X. Nonetheless, the Council stated that Mr Y (the Waste Regulation Officer) and the Assistant Waste Regulation Officer carried out searches of relevant hardcopy and electronic records in response to his current request. It also said that its Information Systems Department searched for email records relating to the applicant-�s request. The Council further stated that Mr Y had searched his work notes and diary for relevant records in response to an earlier request by the applicant. Its position is that no additional records were located. Essentially, the Council-�s position is that all of the records covered by the applicant-�s request in this case have been identified and considered for release in response to his previous access requests and that no other relevant records exist or can be found.

On the matter of whether the Council holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. 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(s) sought.

As the applicant is aware, the scope of this review is confined to whether the Council was justified in refusing access to additional records other than those already considered for release in respect of his previous access requests. I note that, while the applicant indicated that he did not accept the Council-�s submissions, he did not provide any substantive argument as to why further searches should be carried out. Neither did he provide any evidence or submissions in support of his view that additional records should exist.

In the circumstances of this case, I am satisfied that the Council has adequately explained why it concluded that no further records covered by the applicant-�s request, other than those previously considered for release, exist or can be found. Accordingly, I find that the Council was justified in refusing to grant access to additional records under section 15(1)(a) of the FOI Act on the ground that no further records other than those considered in response to his previous access requests exist or can be located.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse access to additional records in relation to the applicant-�s request, other than those previously considered in relation to his previous access requests, under section 15(1)(a) of the FOI Act.

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.

Sandra Murdiff
Investigator