Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to various records relating to water pipe connections and the applicant's related dealings with the Council, and to a specified planning application under section 15(1)(d)

24 November 2023

Background

The applicant in this case believes that a connection was made by the Council to his water mains, which was not in line with approved plans.

On 4 January 2023, the applicant made a four-part request to the Council for various records relating to a water connection at his dwelling, which was installed in 1996, and a water connection at a neighbouring property, which was installed in 2009.

1. Part 1 of the request sought "All paperwork including fees paid for [his] water connection and the names of the council officials involved in making connection to Council public water supply in line with plans submitted to council"¯. The applicant referred to the planning application which he submitted to the Council in 1996.

2. Part 2 sought "All paperwork including fees paid for water connection including the licence to open a public Road [application number] and the names of council officials involved in making connection into [his] water mains pipe"¯. The applicant included the planning application file number which was submitted by a third party at a neighbouring site.

3. At part 3 of his request, the applicant requested that a letter that he sent to a named staff member of the Council on 15 June 2022 be acknowledged. He also sought a comprehensive response to the concerns he highlighted and an explanation as to why he did not receive a response from that staff member.

4. At part 4 of his request, the applicant sought the reasons why he is not allowed to correspond with a named staff member and clarification on the role of another staff member whom he believed instructed the customer service team not to answer phone calls from him

In a decision dated 27 January 2023, the Council part-granted the applicant's request. It released a record of a road opening licence for public water connection associated with a specified planning application in relation to part 2 of the request. It refused the remainder of part 2 of the request under section 15(1)(d) of the FOI Act. It refused part 1 of the request under section 15(1)(a) on the ground that the records do not exist or cannot be found. It stated that "Reasonable steps have been taken to try and locate this water connection record which took place 27 years ago"¯. It refused parts 3 and 4 of the request under section 12(1)(b) of the FOI Act, which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps.

On 6 April 2023, following a request for an internal review, the Council affirmed its decision. On 15 April 2023, the applicant applied to this Office for a review of the Council's decision.

During the course of this review, the Council made a submission to the effect that it understood parts 3 and 4 of the applicant's request, which it refused under section 12(1)(b) of the FOI Act, to be a request for information, as opposed to a request for records. It said that the applicant was "fully aware" of the answers to those parts of the request. Following correspondence with this Office, the Council essentially changed its position and released three records to the applicant relating to part 4 of the request. I understand that it is now the Council's position that no records exist relating to parts 1 and 3 of the request, and that no further records exist in relation to part 4, other than those already released.

The Investigating Officer subsequently informed the applicant of her view that the records released by the Council contained the information sought in part 4 of his request. She also provided the applicant with details of the Council's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records relating to his request existed or could be found within the Council in relation to the request. The Investigating Officer invited the applicant to make further submissions or comments on the matter. The applicant provided this Office with his comments on 5 October 2023 and 25 October 2023. The applicant is of the view that further records should exist.

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 to this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to records relating to the water pipe connections outlined in the applicant's request and in regard to his dealings with the Council on the basis that no further records exist or can be found, and, under section 15(1)(d) of the Act, on the basis that the information is already in the public domain.

Preliminary Matters                                                                       

Before considering the substantive issue arising, I wish to make a number of preliminary points.                   

It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Secondly, in his submissions to this Office, the applicant set out the background and context of the request. He also explained why he sought the records. On this point, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Lastly, in his submissions to this Office, the applicant made allegations concerning the legality of the connection made by the Council into his water mains. It is also important to note that this Office has no role in examining how FOI bodies carry out their functions, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act. 

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. 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.

As noted 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 that no further records exist or can be found. The Investigating Officer provided the applicant with an outline of the Council's submissions in this regard. 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.

In essence, it is the Council's position that records relating to the applicant's water connection, which the applicant sought in part 1 of the request, and again at part 2, may have existed at some stage but that it is likely they were mislaid or destroyed during the transfer of water service records from their previous location in the local water service office to the Public Service Centre, Carndonagh, which opened in 2003. Nevertheless, it said that the applicant had been advised that Irish Water, which was established in 2014 and is now called Uisce Ɖireann, are the body responsible for addressing his concerns regarding the water connection to his property. It said that the applicant was provided with a comprehensive letter from Irish Water on 14 February 2022 addressing his queries in relation to his water connection. It said that the applicant's planning application, which he referenced in part 1 of his request, is publicly available on the Council's planning portal. In relation to part 3 of the request, the Council essentially said that it provided a written response to the applicant on 25 October 2022 acknowledging receipt of his email/letter dated 15 June 2022, but that it was not signed by the staff member from whom the applicant sought an acknowledgement. On foot of its correspondence with this Office during the course of the review, it released three records to the applicant in relation to part 4 of the request.

As mentioned above, the Investigating Officer provided the Council's search details to the applicant and invited him to make further submissions or comments. The applicant's responses to this Office primarily concerned the substantive matter of the water connections at his property and at a neighbouring property. He said that he was previously provided with documents from the Council and that "someone knows where to look"¯ for the records. While the applicant did not dispute the Investigating Officer's view that the records released during the course of the review addressed part 4 of his request, he disputed the contents of those records. However, the content of the records which were released is not the subject of this review. It is open to the applicant to take this matter up directly with the Council, should he wish.

During the course of the review, the Investigating Officer queried whether the applicant's planning application, which he referred to in part 1 of the request, contained any information on the applicant's water connection. She also noted that having accessed the relevant file on the planning portal, there were no scanned documents available for viewing. I understand from the Council's response that it considers that the applicant's planning application, which is a hard copy file, is outside the scope of part 1 of the request, which sought records relating to the applicant's water connection application. It said that the applicant's water connection application did not form part of his planning application, but that it involved a separate application to the Water Section for a formal connection to the water supply. It said that this is the file which no longer exists. It indicated that in any event, the applicant's planning application is available for public viewing in the County House, Lifford, and that it is open to the applicant to contact the Council and arrange to view same if he wishes.

In relation to part 3 of the request, while the applicant is of the view that his correspondence dated 15 June 2022 ought to have been acknowledged by a particular staff member, I understand that the Council issued a response to the applicant on 25 October 2022, which was signed by another staff member. The Council also provided this Office with a copy of this letter during the course of the review. In the circumstances, I accept that the record sought by the applicant at part 3 of the request does not exist. I am also satisfied that the Council has released the relevant records containing the information sought at part 4 of the request.

In his submissions to this Office, the applicant said he has evidence that historical documents regarding planning permission that the Council said could not be found were sent out by the Council to a named individual regarding his water connection in December 2000. I note from the Council's submissions in this case that it is not disputing that relevant records may have existed at some stage. 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.

I have reviewed the Council's explanation as to why it concluded that no further records exist, as well as the applicant's submissions in this case. In the circumstances, I am satisfied that the Council has adequately explained why it concluded that no further records exist or can be located. While I understand the applicant's frustration with the absence of certain records, in the absence of any substantive arguments or evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records coming within the scope of his request. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant's request on the ground that no further records exist or can be located.

Section 15(1)(d)

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request if the information requested is already in the public domain.

In relation to part 2 of the request, the Council refused access to a specified planning application under section 15(1)(d). This record is accessible via a planning application search on the Council's websitehttps://www.eplanning.ie/DonegalCC/SearchExact. In the circumstances, I am satisfied that the planning application is already in the public domain and that section 15(1)(d) applies.

I wish to add, however, that where a public body relies on section 15(1)(d) to refuse a request, I would expect it to inform the applicant why and where the records could be accessed publically. The Council did neither of these things. Instead it simply informed the applicant that it was refusing these parts of his request because "such record is already in the public domain."¯ While in this case, the Investigating Officer provided details to the applicant about the records concerned to allow him to identify and access the information if he wishes, I expect the Council to provide those details if relying on this provision when processing future requests e.g. links to webpages or other details of information published.

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 further records relating to the applicant's request on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I also affirm its decision to refuse access, under section 15(1)(d) of the Act, to information contained in the relevant planning application on the ground that the information is already in the public domain.

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.

Richard Crowley
Investigator