Whether the Council was justified in refusing access to records of survey work pertaining to three planning application files for a particular site under sections 15(1)(a) and 15(1)(d) of the FOI Act

24 July 2023

Background

On 23 January 2023, the applicant sought access to records relating to -�all survey work at [a specified] site after 1st of April 2020.-� Her request referred to the Council-�s Planning Department file relating to a proposed quarry at a particular site and listed three separate planning application references for the development concerned.

In the same email, the applicant went on to request access to various environmental reports and assessments relating to the same development, under the European Communities (Access to Information on the Environment) Regulations 2007 to 2018.

In a decision dated 20 February 2023, the Council refused the applicant-�s request. It stated that the information sought by the applicant would be contained in an Environmental Impact Assessment Report (EIAR). It said that no such report was submitted in respect of the first application listed (File A), that the application in relation to the second application (File B) was deemed invalid and all documents were returned to the planning applicant and that the EIAR relating to the third application (File C) was available on the Council-�s Planning website, as part of the relevant planning application file. The Council relied on section 15(1)(d) of the FOI Act, i.e. that the information sought was already in the public domain, to refuse her request in full. Following a request for an internal review, on 13 March 2023, the Council affirmed its original decision.

On 5 April 2023, the applicant applied to this Office for a review of the Council-�s decision.

During the course of the review, the Council indicated that it also wished to rely on section 15(1)(a) of the FOI Act. This Office-�s Investigating Officer wrote to the applicant on 28 June 2023 and informed her of the Council-�s position. She also provided details of the Council-�s submissions in relation to the searches undertaken to locate the records sought. She invited the applicant to make a submission on the matter. No such submission has been received to date.

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 correspondence between the applicant and the Council as outlined above, and to communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its internal review decision, the Council stated that the applicant-�s original request sought -�all reports prepared on or on behalf of Donegal County Council or received by it from any person or body whatsoever-� in specified areas -�in respect of a stated range of environmental considerations-�. Having carefully examined the applicant-�s original FOI request, however, it appeared that these matters were contained in the applicant-�s request under the AIE Regulations, not her FOI request. The Investigating Officer asked the Council to clarify how it had dealt with the applicant-�s separate FOI and AIE requests contained in her email of 23 January 2023. In response, it stated that -�the request for information from [the applicant] was made under both the FOI and AIE codes and a response was duly issued under both codes-�. It forwarded a copy of the decision on the applicant-�s AIE request, which refused her AIE request on the same basis as her FOI request. Essentially, it appears that the Council considered both of her requests, although worded considerably differently and made under different access regimes, to relate to the same category of records, i.e. environmental reports or surveys on the proposed development.

In her application to this Office for a review, the applicant referred to a particular record which she suggested may be held by the Environmental section of the Council, i.e. -�an Environmental survey/test conducted between 26th May and 29 May 2020-� which she believes was commissioned by the Council. She indicated that this record may not solely relate to the planning department -�but may also include the environmental section-� of the Council. During the course of the review the Council indicated to this Office that it had carried out additional searches for relevant records held by its Planning Enforcement section. However, having had close regard to the wording of her original request, I am satisfied that such additional records were not within the scope of the applicant-�s FOI request, which sought records in relation to three specific planning applications. This review cannot consider any records/information which were not within the scope of the applicant-�s original request. It is, of course, open to her to make a fresh request to the Council for access to records that may be held in other sections of the Council and not on the relevant planning application files.

Having regard to the above, this review is solely concerned with whether the Council was justified in refusing access to records of survey work relating to three planning application files for a proposed development at a specified site under sections 15(1)(a) and 15(1)(d) of the FOI Act.

Analysis and Findings

The Council relied on a combination of sections 15(1)(a) and (d) to refuse the applicant-�s request in this case. I shall consider the application of section 15(1)(d) in the first instance.

Section 15(1)(d)

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. In its original decision, the Council said the applicant-�s request -�relates to information to be contained within an Environmental Impact Assessment Report as detailed in Schedule 6 of the Planning & Development Regulations 2001 (as amended)-� and that this information was submitted under planning application File C. In its submissions to this Office, it said the information was available on its planning website athttps://www.donegalcoco.ie/services/planning/planningapplicationsearch/by using the relevant planning file reference number. It also said that there was an EIAR and a Natura Impact Statement (NIS) on this file. In the circumstances, I am satisfied that the relevant records on planning application File C are already in the public domain and that section 15(1)(d) applies.

Section 15(1)(a)

While I note that the Council initially relied on section 15(1)(d) in respect of relevant records held on planning application Files A and B, section 15(1)(a) appears more relevant. Accordingly, I will now consider the Council-�s decision to refuse to release records relating to Files A and B and additional records held on File C on the basis of 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. 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. 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 outlined above, the Council provided this Office with details of the searches it said it undertook in an effort to locate relevant records and its reasons for concluding no further records exist, other than the information which is already in the public domain. The Investigating Officer provided the applicant with an outline of the Council-�s submissions as to why it did not hold any records on planning application Files A and B, and why it holds no further records on File C. 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 said that its searches were confined to the planning files relating to the applications identified by the applicant in her FOI request. It said that both manual and electronic searches were carried out to locate relevant records. As set out above, its position is that only File C contained an EIAR, which it refused to release under section 15(1)(d) of the FOI Act (considered above). The Council said that when planning applications of a significant nature are received in the Planning Section of the Council -�they are normally referred to the Roads Section/Roads Design Section/Building Control/Chief Fire Officer for comments on the application-�. It said that all reports received -�are filed on the hardcopy file and uploaded to the planning system section of the Council-�s website under the relevant planning reference number together with all application documents-�. 

As I outlined above, while the applicant was provided with details of the Council-�s submissions in relation to the existence of records relating to her request, and invited to comment, she has not responded to date.

In its submissions to this Office, the Council also stated that it carried out further investigations in relation to potential enforcement action undertaken by the planning authority in relation to the quarry site. It stated that the applicant in this case made a complaint relating to alleged unauthorised developments at the quarry on 15 November 2021. It stated that these allegations were and found to be not unauthorised works, but rather that they were site investigation works to inform the planning application process. It stated that as such, these works were deemed to be exempted development. The Council said that the applicant was advised of this during a telephone conversation with the relevant planning officer on 17 November 2021. The Council stated that the investigation report into the complaint -�may be the episode that [the applicant] was referring to-� in her FOI request. It also said that the applicant had been updated on the outcome of the investigation at the time. In any event, its position, essentially, is that records relating to the investigation and complaint are held on the Council-�s enforcement file, rather than any of the three planning application files referred to in her FOI request.

I have had regard to the details of the searches provided by the Council and to its explanation why the records sought do not exist on planning application Files A and B, and why no further relevant records exist on File C other than those already in the public domain. While the applicant referred to a specific environmental survey/test in her application to this Office, which she believes was conducted in May 2020, she has not provided any evidence or substantive arguments to suggest that further searches in relation to the specified planning application files are warranted. Furthermore, while it appears that additional records relating to the quarry might be held by the Council, I am satisfied that the records are outside the scope of her FOI request, which solely related to the planning application files in question.

In the absence of evidence to suggest that further 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 FOI Act, the applicant-�s request for records on the ground that no relevant records exist in relation to planning applications A and B, and no further relevant records exist on File C apart from the record which it refused on the basis that it was in the public domain.

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 one report under section 15(1)(d) as it is in the public domain. I also affirm its decision to refuse access to additional records relating to the applicant-�s request under section 15(1)(a), 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.

Sandra Murdiff
Investigator