Whether TII was justified in refusing access to information contained in records relating to plans for an underpass as part of the proposed N11/N25 Oylegate to Rosslare Harbour motorway in full or in part under section 37(1) of the FOI Act, in refusing access to certain information on the basis that it is outside the scope of the applicant-�s request and in refusing access to further records under section 15(1)(a) of the FOI Act

18 August 2023

Background

The applicant in this case resides in the vicinity of the proposed N11/N25 motorway route running from Oylegate to Rosslare Harbour, which I shall refer to as the N11/N25 project. I understand that the applicant believes that plans for the motorway were changed to include the provision of an underpass to allow access to a neighbouring property. In a request dated 3 December 2022, the applicant sought access to -�all records, whether in hard copy, digital or telephone format, dealing with plans, drawings, negotiations, approvals, correspondence, notes of meetings and the like-� relating to:

1. The provision of the underpass,
2. How this amended the previous plan(s) for the area,
3. Alternative means of access considered in lieu of the underpass,
4. Consideration given to how the height of the proposed embankment necessitated by the provision of the underpass would or may affect her property or her occupation, use and enjoyment of her property,
5. Proposed measures designed to mitigate the effects of the proposed development on her property,
6. A cross section map of the proposed roadway showing the elevation of the road extending from 500m north to 600m south of her property,
7. The elevation of the proposed roadway prior to, or in the absence of, the underpass referred to above.

In a decision dated 16 December 2023, TII issued a decision wherein it part-granted the applicant-�s request and released three records comprising drawings of the proposed development, subject to the redaction of certain information under section 37 of the FOI Act. Following a request for an internal review, on 27 January 2023, TII varied its original decision and released three additional records in part to the applicant, under section 37 of the FOI Act. In its internal review decision, TII stated that the additional records comprised three emails to TII which included the links to the preliminary design drawings which it had already released. It also said that certain information had been withheld from one of the emails on the basis it was not relevant to the applicant-�s request.

On 15 April 2023, the applicant applied to this Office for a review of TII-�s decision. In her application for review, the applicant indicated that she considered that further relevant records should exist. She also sought a review of the TII-�s reliance on section 37.

During the course of the review, the Investigating Officer provided the applicant with details of TII-�s submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or could be found, i.e. that section 15(1)(a) applies. She invited her to make a further submission on the matter and the applicant duly responded.

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

Scope of Review

The applicant is of the view that further relevant records exist. This is, in essence, a refusal by TII to release further relevant records under section 15(1)(a) of the FOI Act.

Accordingly, this review is concerned solely with whether TII was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for further records coming within the scope of her request as set out above and in refusing access to certain other records, in full or in part, under section 37(1) and in refusing access to some information on the basis that it is outside the scope of the request.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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.

It is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Finally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent.  Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

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. In such cases, the role of this Office 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 his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The records identified by TII as relating to the applicant-�s request are three drawings, released in part with its original decision, and a related email thread, released in part at internal review stage. In her application to this Office, the applicant queried the absence of attendance notes and minutes of meetings, as well as the lack of further email correspondence. She also queried the absence of records relating to references in the emails released in part, which mentioned a proposed workshop in May 2022 and a meeting and/or workshop held in September 2022, as well as the lack of subsequent records relating to an email of 10 October 2022 which sought a response. 

As I have outlined above, TII provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further relevant records exist. The Investigating Officer provided the applicant with an outline of TII-�s submissions as to why it did not hold any further records. 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 general thrust of TII-�s submissions, as set out in its original and internal review decisions, is that as it is not involved in the day-to-day design development of the project concerned, it holds limited records relating to the applicant-�s request, all of which were released. TII-�s position is that Wexford County Council (the Council) as the road authority for the relevant area has responsibility for the project, not TII. I understand that the applicant also made a request to the Council for similar records.

By way of background, TII stated that under the provisions of the Roads Act 1993 (as amended), it has a -�general duty to secure the provision of a safe and efficient network of national roads-�. It said that for that purpose, it has responsibility for the construction and maintenance of national roads, which it delivers in partnership with local authorities. TII said that it is the funding authority for national road schemes while the relevant local authority is the road authority. It also said that the relevant road authority in each case oversees the development of a scheme through the planning, design and statutory approval process and, in most cases, is the contracting authority for the scheme works. TII said that its own role is to ensure that all individual projects and investment proposals relating to the National Road Network meet the relevant appraisal processes and value-for money tests required under the Public Spending Code, before public funds are invested.

In its submissions to this Office, TII said that the SEI for the South-East Region, whose remit includes County Wexford, is the relevant individual who it would expect to hold records relating to the applicant-�s request. It said that the Project Manager for the N11/N25 project communicates directly with the SEI. TII said that the SEI stated that he/she holds relevant records on Outlook and on their local drive. It stated that draft copies/early iterations of the proposed alignment received by TII for comment would not be stored centrally on the shared server. TII stated that deliverables are the key milestone reports required to be submitted to TII by the local authority/Sponsoring Agency, and that only final deliverables are uploaded to its server. Its position is that the N11/N25 project is currently in the planning and design stage and that there were no final deliverables relating to this project at the relevant time. It said the SEI carried out a search of his/her Inbox and Sent Items folders in Outlook using appropriate keywords in order to locate relevant records. In addition, TII said a search was undertaken of emails to/from the Project Manager.

TII said that its staff attend meetings with the Council and the Project Team relating to the general progress of the N11/N25 project at a management level. It said that such meetings were not a forum for discussing technical and design issues. It confirmed that the SEI attended a workshop in September 2022 where the -�proposed road alignment for the entire scheme was discussed-�. However, TII stated that as it was not the organiser, and as no actions arose from the workshop for TII to address, the SEI did not take notes of the meeting. Its position is that it does not hold any minutes arising from the workshop.

During the course of this review, the Investigating Officer queried whether the agencies referenced in the records released to the applicant, including Tramore House Regional Design Office (THRDO) and Company [A] were service providers to TII. Section 11(9) of the FOI Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. Section 2 defines -�service provider-� as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.-�

The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt. This does not mean that all records held by the service provider are subject to the FOI Act. The records must relate to the service provided for the FOI body.

In response, TII said that THRDO was established to oversee and deliver national roads projects in the South East Region. It also said that THRDO falls under the administration of Waterford City and County Council and its staff are full-time local authority employees. TII said that the Council is fully responsible for and has full control over all aspects of THRDO, including in relation to its day-to day administration, management and its staffing. It said that all documents, emails and correspondence from THRDO in respect of road schemes were issued on behalf of the Council. It also said that Company [A] was procured by the Council as a technical consultant for the project concerned. TII-�s position is that neither THRDO nor Company A are service providers to TII. I have no reason to dispute this.

In her response to the outline of TII-�s submissions, while the applicant appeared to accept the TII-�s role, she argued that TII should have some -�recorded oversight-� of the project it was financing, which she noted was originally estimated to cost €400 million. The applicant also raised some specific queries relating to the keywords used by TII to locate relevant records. She queried the absence of any notes, diary entries or other records held by TII-�s Senior Engineering Inspector (the SEI) relating to his/her attendance at relevant meetings/workshops. Among other things, she also noted that the provision of updated drawings to TII implied the existence of initial drawings.

In response to a request for clarification in relation to the search terms used, TII said that it used the terms -�alignment-� and -�road layout-� due to the specific nature of the applicant-�s request. It said that the proposed alignment/road layout of the mainline carriageway -�informs the need for overbridge or underbridge structures.-� TII also said that these terms would capture records relating to -�private, local or regional roads-� whether a bridge structure is provided or not.-� It said that it did not use the project reference or scheme name when searching email correspondence as it would not always be referenced in full or at all in relevant correspondence. It said that rather, it carried out a search of all correspondence to/from the Project Manager for relevant records, which it considered to be more effective.

It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The FOI Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. It is also important to note that it is possible, and it is clearly envisaged by the FOI Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, we take the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.

While the applicant is of the view that further records should exist, she has not made any substantive arguments in this regard. While she may find it unsatisfactory that TII holds no further records, TII-�s position is that it does not have a day-to-day role in running the project. Furthermore, the wording of her request was very specific and concerned records relating to the underpass, rather than the overall project itself. The question I must consider is whether TII has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Having considered the details of the searches undertaken and its explanation as to why no further records falling within the scope of the request exist or can be found, and in the absence of supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has.

Accordingly, I find that TII was justified in refusing to release additional records under section 15(1)(a) of the FOI Act, on the ground that no further records falling within the scope of the applicant-�s request exist or could be located.

Section 37

In its original decision of 16 December 2022, TII relied on section 37 of the FOI Act to withhold the names/initials of employees of Company [A]. At internal review stage, it also relied on section 37 to refuse access to the names and contact details of employees of Company [A] and the mobile phone number of a THRDO staff member contained in the additional records released to the applicant.

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. This Office takes the position that individual staff members are still generally entitled to the right to privacy.

During the course of the review, this Office sought a submission from TII on the applicability of section 37 of the FOI Act. In response, TII essentially argued that the redacted information in the records originally released, comprising the names/initials of employees of Company [A], were redacted on the grounds that they do not relate to public sector staff but to employees of Company [A] which is not a service provider to TII. As set out above, I am satisfied that Company [A] is not a service provider to TII.

Records originally released

Having considered the records and the exclusion to the definition of personal information, I am satisfied that the exclusion does not apply to the names/initials of the individuals who represent and/or are employed by Company [A]. Accordingly, I find that section 37(1) applies to the names/initials of the employees of Company [A] which were withheld from the records originally released.

Records released at internal review stage

On the matter of the records released in full or in part at internal review stage, I am satisfied that the email addresses and phone numbers of third party employees of Company [A] and the mobile phone number of a THRDO staff member can be considered personal information for the purposes of section 37(1) of the FOI Act.

However, that is not the end of the matter, as section 37(1) is subject to the other provisions of section 37. I am satisfied that none of the exceptions set out in section 37(2) apply.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply in this case.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person(s) to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It is important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the FOI Act imposes no constraints on the uses to which information released under FOI may be put.

I am required to disregard the applicant-�s reasons for making her request except insofar as it can be construed as a public interest. I understand that she is seeking the records concerned in the context of her own property which is in the vicinity of the proposed motorway. In her submissions to this Office, the applicant argued that the redactions, or some of them -�may not be appropriate-�. I note that she has not made any particular public interest arguments in the release of the information at issue in her correspondence with this Office.

I have carefully examined the records concerned and I am satisfied that all of the information withheld under section 37 comprises the initials or contact details of various individuals. It is not clear to me how the release of initials or email addresses of staff members of a private company or the mobile phone number of a local authority staff member would shed any light on the matters concerned. In the circumstances of this case, I cannot identify any public interest reasons in favour of release of the withheld information. I find that the public interest in granting access to the withheld information does not, on balance, outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply and that TII was justified in refusing access to the information withheld on the basis of section 37(1) of the FOI Act.

Information Outside Scope

In its internal review decision, TII withheld certain information from record No. 3 on the basis that it was -�not relevant-� to the applicant-�s request. As noted above, in her application for review, the applicant queried the appropriateness of these redactions. In its submissions to this Office, TII said that the applicant-�s FOI request related to records relating to the provision of an underpass in the vicinity of her property. Its position was that the redacted information related to general N11/N25 project arrangements and drawings, rather than the provision of an underpass at the specified location, and as such, it was not within the scope of her request.

I have carefully reviewed the withheld information in Record No. 3. Having regard to the specific wording of the applicant-�s request, I am satisfied that the information withheld by TII does not relate to any of the items set out at parts (i) to (vii). Accordingly, I am satisfied that TII was justified in refusing access to the remaining information contained in one of the records released at internal review stage on the basis that it is outside the scope of the applicant-�s request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TII. I affirm TII-�s decision to refuse access to information contained in the records released under section 37(1) of the FOI Act. I find that, on balance, the public interest does not favour its release. I affirm its decision to refuse access to the remaining information withheld on the basis that it is not within the scope of the applicant-�s request. I also affirm TII-�s decision to refuse access to further records 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