Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records coming within the scope of the applicant's request on the basis that no further records exist or can be found and whether the Council was justified in refusing access to certain records under section 15(1)(i) of the Act on the basis that they had been released to the applicant previously

22 November 2023

Background

This case has its background in alleged unauthorised development works at a particular site, which was the subject of previous reviews by this Office in cases OIC-135115 and OIC-135110. In a request dated 12 September 2022, the applicant made a five-part request to the Council for records concerning a particular Enforcement File [A] and other issues.

• Part 1 of the request referred to an email dated 30 April 2020 which was released to the applicant by the Council on foot of a previous request and sought access to records referred to in that email, including the "review of resurfacing works on the national road in this location"�.
• Part 2 of the request sought copies of all letters which were issued to the applicant by a named staff member of the Council from May 2019 to date.
• Part 3 of the request sought copies of all photographs taken by a named staff member with the consent of the applicant.
• Part 4 of the request sought copies of all photographs taken (without the consent of the applicant) by other engineers, personnel or contractors.
• Part 5 of the request sought all copies of reports undertaken by contractors or personnel of the Council.

In a decision dated 10 October 2022, the Council part-granted the applicant's request. It released 67 records to the applicant in full, including one photograph relating to part 3 of the request. It refused access to part 1 of the request, under section 15(1)(a) of the FOI Act, on the ground that a record of the "review"� does not exist. It also refused access to six records (as listed on the schedule of records that accompanied its decision) relating to parts four and five of the request, under section 15(1)(i) of the FOI Act, on the basis that they were released to the applicant under a previous FOI request.

Following receipt of the Council's decision, the applicant informed the Council of her belief that the named staff member had taken more than the one photograph which was released to her in response to part 3 of her request. In reply, the Council said that the staff member in question advised that while he took a number of photographs, he had deleted all but the one photograph provided. The applicant subsequently sought an internal review of the Council's decision. She requested that "all back up records be reassessed to confirm that such records are reissued in full"�, as she was aware that records had been deleted. She also requested copies of transcripts of telephone conversations and external reports prepared by third parties, including road safety audit reports.

On 25 November 2022, the Council affirmed its decision. It further relied on section 15(1)(a) of the FOI Act, on the basis that the Roads Directorate and its offices do not record or transcribe phone calls. It said that no further records of photographs exist. It released a copy of a Road Safety Audit Report to the applicant, though it noted that this record was previously released to her. On 25 May 2023, the applicant applied to this Office for a review of the Council's decision.

During the course of this review, this Office's Investigating Officer provided the applicant with details of the searches undertaken by the Council and of its explanation as to why it holds no further relevant records. In reply, the applicant accepted that she had been provided with the records relating to part 2 of her request. However, the applicant contended that additional records relating to parts 1, 3, 4 and 5 of her request 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 correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant believes that additional records relating to her request should exist. The Council's position is that no further relevant records exist or can be located. This is, essentially, a refusal to release additional records relating to the applicant's 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.

Having regard to the above, this review is concerned solely with whether the Council was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, access to further records relating to parts 1, 3, 4 and 5 of the applicant's request on the basis that no further records exist or can be found, and, under section 15(1)(i) of the Act, on the basis that the relevant records were released to the applicant previously.      

Preliminary Matters

It is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

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 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the satisfaction of the Commissioner that the decision was justified. Therefore, in this case, the onus is on the Council to satisfy this Office that its decision was justified.

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. The role of this Office 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 his/her decision and also 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 and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
During the course of this review, the Investigating Officer sought submissions from the Council, wherein she asked it, among other things, to provide details of the searches undertaken on foot of the request and its reasons for concluding that no further relevant records exist. As the applicant has already been provided with details of the Council's submissions, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In short, the Council said that the relevant staff members both confirmed that the review referenced in part 1 of the applicant's request was verbal and that there is no record in existence as it was never created. It said the review and verbal exchanges between the relevant staff members informed the letters that issued to the applicant, which were the subject of part 2 of the request. Regarding part 3 of the request, the Council said that while the staff member in question took a number of photographs, all but one was deleted and those that were deleted are no longer retrievable. It said that the photograph which was released to the applicant was stored on the staff member's work mobile phone and that the staff member confirmed that he did not save the photographs to any other location.

In relation to part 5 of the applicant's request, the Council said no Road Safety Audit Report was released on foot of the initial request because road safety audits are a formal safety performance examination of an entire road rather than a dedicated report on a specific location. It said when the applicant specifically sought road safety audit reports in her request for an internal review, the Council released a copy of a document entitled "�N72 Pavement Strengthening Scheme Combined Stage 1/2 Road Safety Audit' dated February 2016. It said that during the course of this review, it released a Stage 3 Safety Audit Report for the N72 Pavement Strengthening Scheme to the applicant. It said that due to an oversight, this record was not released to the applicant at internal review stage.

As outlined above, the Investigating Officer provided the applicant with details of the Council's submissions as to why it does not hold additional relevant records. In response, the applicant said that she found it "horrifying"� that no records exist in relation to part 1 of the request. She said that she was "not happy"� that an engineer "deletes all the job"� in her comments about the photographs sought in part 3 of her request. The applicant said she was not provided with information from "contractors"� of the Council in relation to part 4 of her request. In relation to part 5 of her request, the applicant made a number of comments on the content of the Stage 3 Road Safety Audit and the Cork National Road's Office. The applicant said that she had been informed verbally by a named contractor that a comprehensive report had been prepared by another firm of engineers, but that no such report was provided to her. She said "there should be other reports, such as snag lists etc."�. The applicant also referenced other matters, including the Council's decision on a separate FOI request she had submitted. For the benefit of the applicant, it is important to note that this review is confined to matters coming within the scope of her original request in this case.

Following the applicant's response to details of the Council's searches, the Investigating Officer contacted the Council. Specifically, she asked the Council to comment on the applicant's arguments that she was not provided with information from contractors in relation to part 4 of her request, and that she was informed verbally by a contractor of the existence of a further report, which was not provided to her, in relation to part 5 of her request.

In response, the Council said that the Senior Executive Engineer who managed this project recently passed away. It said that it could not, therefore, put this particular request concerning photographs to him, but that he had previously advised that he did not request the contractor to take any photographs and that he had no knowledge of any photographs taken by the contractor without the applicant's consent. The Council said that the engineer who assisted the Senior Executive Engineer on the project also confirmed that he made no such request and similarly has no knowledge of any photographs taken by the contractor without the applicant's consent. On the matter of the snag list report, which the applicant believes to exist, the Council said that it considered this record to be outside the scope of the applicant's original FOI request, as it was not specific to the applicant's property. It said that several reports specific to the applicant's property were released to her pursuant to her FOI requests. It provided a copy of the snag list report to this Office entitled "N72 Grange East & West Pavement Strengthening"�. 

The Investigating Officer subsequently queried whether the contractor which the Council had referred to in its submissions to this Office was a service provider to the Council and if so, whether it had considered the contractor might hold any relevant records relating to parts 4 and/or 5 of the request. 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 of the Act 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, the Council said that it had approached a former employee of one service provider to determine whether it holds further relevant records relating to part 5 of the request. It said that it also contacted a second service provider, which advised that relevant records, if they exist, would be archived and that it would take some time to retrieve them. The Council indicated that it would request the reports which may be held by the service provider should this Office insist on it taking such steps.

In further submissions to this Office, the Council said that it was of the view that the applicant was attempting to retrospectively expand the scope of her original FOI request. It said that 8 reports were identified as falling within the scope of her request, which were prepared by professional staff (Engineers and Planners) directly employed by the Council.  It said that no external consultants were engaged.  It said that it is therefore not possible that additional reports are held by a service provider external to the Council. It said that the records sought by the applicant, including the snag list, relate to a scheme involving roadworks on a public road over a number of kilometres, and that while the property of interest to the applicant would have been one of the several properties with access to this route, the work was not specific to her property or to Enforcement File [A].

Analysis

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.

I have reviewed the Council's explanation as to why it concluded that no further records exist, as well as the applicant's comments. In the circumstances, I am satisfied that the Council has adequately explained why it concluded that no further records relating to parts 1 and 3 of the applicant's request exist or can be located by the Council. I have no reason not to accept the Council's submission that the relevant staff members confirmed that records relating to part 1 never existed, and that those relating to part 3 no longer exist. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, parts 1 and 3 of the applicant's request for records on the ground that no further records exist or can be located.

In relation to part 4 of the applicant's request, the applicant is satisfied that she has been provided with photographs from personnel of the Council, but not its contractors. In my view, the Council has not undertaken sufficient enquiries at this stage to establish what, if any, photographs are held by "the contractor"�.  

On the matter of part 5 of the request, I note the Council's position that the applicant is attempting to expand the scope of her original request as part of this review, which it said referenced Enforcement File [A].

At this stage, I think it is worth considering the obligations of both requesters and public bodies under the FOI Act in cases such as this. Section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, while section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests.

It seems to me that part 5 of the request, which seeks access to "all copies of reports undertaken"� by contractors or personnel of the Council is broad in nature, and that requests that seek access to "all records relating to"� a particular matter or subject invariably run the risk of giving rise to disputes in relation to the scope of such requests.

Given the exchanges between the parties during the processing of the request, it is unfortunate that the parties did not engage more fully in order to better understand the extent of the records that were of interest to the applicant. Nevertheless, it seems to me that the Council took an unduly narrow interpretation of the request. While it interpreted the request as one for records relating to Enforcement File [A] only, it is worth restating that the applicant indicated that the subject of her request was "Enforcement File [A] "�and other issues"� (my emphasis) and she specifically referred to records held by contractors in parts 4 and 5 of her request. As noted above, in its submissions to this Office, the Council said that it contacted one of the relevant service providers, which advised that relevant records, if they exist, would be archived. In the circumstances, I am not satisfied it has undertaken all reasonable steps to conclude that no further records exist in relation to part 5 of the applicant's request.

Having regard to the Council's submissions in this case, I consider that the most appropriate course of action to take is to annul the Council's decision on parts 4 and 5 of the request insofar as they relate to contractors, the effect of which is that the Council must consider those parts of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council's decision.

I should add that in light of my comments above about the scope of the request, I strongly recommend that both parties engage further in the first instance to ensure that the precise scope of the request is agreed.

Accordingly, while I affirm the Council's decision to refuse parts 1 and 3 of the request under section 15(1)(a) of the FOI Act, I annul its decision on parts 4 and 5 insofar as they relate to any relevant photographs and/or reports held by contractors of the Council. I direct it to consider the request afresh and make a new, first instance, decision on those parts of the request in accordance with the provisions of the FOI Act.

Finally, in relation to the "snag list"� referred to above, it is unclear to me why the Council considers that this list is outside the scope of the applicant's request, when on the other hand it released the other similarly titled "�N72' reports as noted above. I note that the first item on the snag list references a location adjacent to the applicant's dwelling. While the applicant only queried the existence of snag lists during the course of this review, I accept that it falls within the broad scope of Part 5 of her request. However, I do not believe that it would be appropriate to simply direct the release of the snag list where no consideration has been given by the Council as to whether it's content should be released. Accordingly, I direct the Council to make a first instance decision on access to the snag list in accordance with the provisions of the FOI Act.

Access to previously released records - Section 15(1)(i)

The Council refused access to six records in this case on the basis of section 15(1)(i) of the FOI Act, relating to parts 4 and 5 of the applicant's request.

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.

In its submissions to this Office, the Council provided copies of records previously released to the applicant on foot of a previous request. The Council also provided a schedule of records for the previous request and highlighted the records which were previously released to the applicant. I note that the Investigating Officer, in her letter to the applicant on 5 September 2023, informed the applicant of her view that the Council was justified in refusing the request under section 15(1)(i) of the FOI Act. The applicant made no comments on this matter in her reply. In the circumstances, I am satisfied that the Council has provided adequate evidence in support of its decision to refuse access to the six records located relating to parts 4 and 5 of the request on the basis that they had previously been released and are available to the applicant. In the absence of any argument to the contrary, I find that the Council was justified in refusing, under section 15(1)(i) of the Act, the applicant's request for these records on the ground that they had already been released to her.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision. I find that the Council was justified, under section 15(1)(a) of the Act, in refusing access to parts 1 and 3 of the applicant's request on the basis that no further records exist or can be found. I find, however, that it was not justified in refusing access, under section 15(1)(a), to additional records relating to contractors at part 4 and part 5 of the request and direct it to make a fresh decision on those parts of the request, as well as the snag list referred to above. Finally, I affirm the Council's decision to refuse access, under section 15(1)(i) of the Act, to the six records it had previously released.

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