Whether the Council was justified in refusing access to records relating to accommodation works on a specified section of the M11 motorway

24 November 2023

Background

In a request dated 12 June 2023, the applicant sought access to ten categories of records relating to accommodation works carried out on a specified part of the M11 motorway. In a decision dated 15 June 2023, the Council refused the request, citing section 31(1)(a) of the FOI Act as the basis for its decision. On 16 June 2023, the applicant sought an internal review of the Council's decision. In its internal review decision dated 7 July 2023, the Council varied its original decision by granting the release of information falling within the first category of records sought by the applicant. In relation to the remaining nine categories of records, the Council upheld its original decision. On 19 July 2023, the applicant applied to this Office for a review of the Council's decision.

Subsequently, when this Office sought submissions from the Council on the basis for its decision, it indicated that it had re-examined its original decision and had formed the view that it had relied on section 31(1)(a) of the FOI Act in error. I address this point further below.

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 received from the Council. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Council was justified in withholding access to the records sought by the applicant under section 31(1)(a) of the FOI Act.        

Analysis and Findings

As outlined above, in the course of conducting this review, I sought submissions from the Council as to the basis on which it had withheld the records sought by the applicant. In response, the Council indicated that it re-examined its decision on the FOI request and had come to the view that it had relied in error on section 31(1)(a) of the FOI Act in withholding the records.

In addition, the Council indicated that it was not seeking to rely on any alternative provisions of the FOI Act at this time.

In the circumstances, I consider that the appropriate course of action is for me to annul the Council's decision and remit the matter back to the Council in order for it to give the matter fresh consideration.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision, and remit the matter back to the Council for consideration afresh.

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.

Neill Dougan
Investigator