Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to works at a particular site on the ground that no further records exist or can be found

28 February 2024

Background

This case has its background in a previous decision made by this Office's Senior Investigator on 9 November 2022 in case OIC-123481, wherein he directed the Council to undertake a fresh decision on the applicant's request for records on the ground that it had not taken all reasonable steps to ascertain the whereabouts of all records coming within the scope of the request. In essence, the Senior Investigator found that the Council took an unduly narrow interpretation of the request and recommended that both parties engage further in the first instance to agree the precise scope of the request.

In his original request dated 17 November 2021 the applicant sought access to:

"all correspondence obtainable in relation to preparation for, works on and ongoing upkeep of the elevated section of the public footpath on the L4082 road in Coolbunnia, Cheekpoint, County Waterford, from 2018 until present, inclusive of road surveys and road works etc carried out."

Following the Senior Investigator's decision in November 2022, I understand that a meeting took place between the applicant and two staff members from the Council's Roads Department on 3 February 2023 to clarify the scope of the request. I also understand that the outcome of that meeting was that the request was clarified to fourteen queries from the applicant about the site in question.

The Council subsequently released a number of records in relation to items 1, 2, 5- 8, 10-13, and 14.3 and 14.4 of the request, subject to the redaction of certain third party personal information under section 37 of the FOI Act. It also provided responses to a number of the applicant's queries. On 13 June 2023, the applicant requested an internal review. He indicated that no clarifications were sought in relation to items 3- 6. He made queries in relation in items 1, 2 and 7-14 and claimed that further records ought to exist. On 13 June 2023, the Council issued its internal review decision. While it responded to the applicant's queries, no further records were released. The internal reviewer said that sufficient particulars were not obtained at the meeting between Council officials and the applicant on 3 February 2023 and that the request remained extremely broad and open to interpretation. She said the wording of the request should have specifically identified the records sought.

On 26 June 2023, the applicant applied to this Office for a review of the Council's decision in respect of items 1, 2 and 8 of the request. During the course of the review, the applicant agreed to remove item 2 of the request. The Investigating Officer informed the applicant on 20 November 2023 that she was proceeding on the basis that the applicant had limited the scope of the review to additional records which the applicant believes to exist in relation to items 1 and 8 of the request, details of which are outlined 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 outlined above, to the submissions made by the Council in support of its decision and to the applicant's communications with this Office. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

While it is the Council's position that it has released all relevant records to the applicant, he believes that further records ought to exist. Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records that contain the information sought at items 1 and 8 of his request, on the ground that no further relevant records exists or can be found.

Analysis and Findings

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. 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 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.

At the meeting he had with the Council to clarify his request and in his request for an internal review of the Council's decision, the applicant asked a number of questions in relation to the site in question. While the purpose of the 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. In other words, 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 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 worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices. 

Item 1

Item 1 of the request sought "all information following on from the results of excavation work occurring directly below the main road and public footpath" at the site in question. In its original decision, the Council said that excavation took place as part of development of the site owned by a third party. It released photographs to the applicant, which it said were the only records available on that excavation in the Roads Department.

In his internal review request, the applicant asked whether or not the excavation which occurred at a named development directly below the main road and footpath had any effect on the structure and/or safety of the main public road and footpath above same. In responding to the applicant's query, the Council said that this was outside the remit of what was asked under item 1 of the request. It said that in any event, "there are no records available, nor are the Roads Department aware of, any structural issues caused by the excavation of the road or the footpath."

In his request for internal review, the applicant also said he had not been provided with records about concerns that were expressed to the Roads Department on behalf of locals. He also said that he had seen further photos taken by someone in the Council whereby the steepness of the excavation is more evident. In response, the Council said that emails, notes and records relating to works on this section of the road and public footpath were provided as part of its response to item 8. The Council asked the applicant to provide a copy of any records he had that were missing and offered to investigate why any such records were not included in its response to his request.

In his application to this Office, the applicant said he believes "the request for all information would include information relating to the effects of excavation". The applicant provided this Office with a copy of an email thread from June 2019, obtained outside of the FOI process, which he said outlined safety concerns prior to an accident occurring in the area. He said that the individual who sent the email was employed by the Council. He said that while he was asked by the Council to provide a copy of the record, he was reluctant to do so in light of his dealings with the Council to date concerning his FOI request. A copy of this email thread which was provided as part of the application to this Office was provided to the Council when we accepted this case. This email thread references safety concerns about the footpath and road in question and includes an email from the Council's Executive Engineer asking that these safety items be looked at immediately in the interest of public and driver safety.

In submissions to this Office, the Council provided details of the searches it said it undertook in an effort to locate further relevant records and its reasons for concluding that no further records exist or can be found. Essentially, the Council said that it has hard copy files as well as soft copy files on its SharePoint system, where it stores files electronically. It said that all records released were current, that no destruction of records applied to this request and that all relevant records were printed and released. It said that hard copy records were compiled and are still on file in the Roads Department. It said that electronic searches for email histories were conducted on its management program Mailmeter by the relevant staff members, as well as searches on the Council's Online Planning enquiries relating to the third party planning application. It said that the Executive Engineer also kept a hard copy folder of Memos of Chief Executive [CE] Orders, and that all relevant documentation has been forwarded in the FOI responses. The Council said it used search terms including "Cheekpoint Footpath", "Roadplan", the names of the applicant, his spouse, the third party developer, and the names of several contractors and engineers when searching for relevant records. It said that most information is in the form of email threads and would have tagged at least one of the search terms.

The Investigating Officer asked the Council whether email records from 2019 would be covered by Mailmeter. She informed the Council of the applicant's belief that further records exist, including emails from a named staff member of the Council sent in June 2019, that was obtained by the applicant outside the FOI process. In response, the Council confirmed that Mailmeter covers all of its emails. It said that all records it holds have been released. It said that the staff member referenced by the applicant had already forwarded all relevant records as part of this FOI request. However, the Council provided no explanation as to why the email thread in question could not be found or no longer exists, nor did it dispute the applicant's argument that the email suggests further records ought to exist.

During the course of the review, the Investigating Officer also asked the Council to explain why it considered the applicant's query about the potential effects that an excavation at a nearby development might have had on the footpath/road at issue is outside the remit of the applicant's request. In response, the Council said this related to the development in question and not the road excavation. It said the development has nothing to do with the Council's Roads Department, and that it is a private development. The Council has not, in my view, provide an adequate explanation as to why this private development had no impact on the road excavation and consequently why it holds no relevant records in this regard. While, it may well be the case that the Council does not hold any relevant records in this regard, it did not in my view adequately explain why this would be the case, other than saying it is private development.

For the reasons outlined above, I am not satisfied the Council has demonstrated it has undertaken all reasonable searches to locate the relevant records relating to item 1 of the applicant's request.

Item 8

Item 8 of the applicant's request sought "All emails, notes and records relating to works on this section of public road and footpath". In its decision on this part of the applicant's request, the Council released a number of records including records concerning various contracts and emails relating to works on the section of road and public footpath.

In requesting an internal review, the applicant essentially argued that further records should exist. He referred specifically to named individuals who were part of the email thread referred to above, and questioned the existence of further records relating the engineering company that was involved in works at the site. As noted above in relation to item 1, the Council asked the applicant to identify the record which he believed was missing or to provide a copy of it to the Council in order for it to investigate why it was not included in its response to his request. While the applicant did not do so at the time, a copy of this email thread was supplied to the Council during this review.

The Investigating Officer asked the Council whether it had considered if the contractors who carried out works at the site in question were service providers and whether they might hold any relevant records relating to the applicant's request. The Investigating Officer drew the Council's attention to Section 11(9) of the FOI Act. This section 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, the Council said that it had considered section 11(9) of the FOI Act when considering the applicant's request afresh. The Council said it did not engage with any of the companies in this regard. It said that all records have been released. It said it is satisfied that it had all relevant records in its possession and that it has released same. The Council said that it is not aware of any other records that may exist.

Findings

It appears to me that the Council made significant efforts to respond to the applicant's request and his queries in relation to the site in question in this case. Unfortunately, however, having regard to the requirement under section 15(1)(a) of the Act that an FOI body must have taken all reasonable steps to ascertain the whereabouts of records sought, it seems to me that the Council could reasonably have been expected to at least engage with the contractors to determine whether any relevant records exist that might be deemed to be held by the Council for the purpose of section 11(9). While the Council said the searches of its internal systems included the names of various contractors, it did not contact any relevant contractors in relation to the request, nor does it appear to have undertaken sufficient enquiries to establish if those contractors hold any relevant records that might be captured by section 11(9). In my view, this is a sufficient ground for me to find that the Council has not taken all reasonable steps to ascertain the whereabouts of further relevant records relating to the applicant's request.

In the circumstances, and having regard to my findings above in relation to item 1, I am not satisfied that the Council has demonstrated that it has undertaken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant's FOI request. Accordingly, I find that the Council was not justified in refusing access to further records relating to items 1 and 8 of the applicant's request under section 15(1)(a) of the Act. I consider that the most appropriate course of action to take is to annul the Council's decision, the effect of which is that the Council must consider the applicant's request afresh in relation to items 1 and 8 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 he is not satisfied with the Council's decision.

As noted above, the Council's internal reviewer said that sufficient particulars were not obtained when the Council met the applicant on 3 February 2023 and as a result the request remained extremely broad and open to interpretation. In the circumstances, I recommend that both parties engage further to ensure that the precise scope of the request is agreed, with a focus on identifying the records sought.

Finally, as noted above, the applicant claims he is aware of certain records that were not released to him by the Council. I note that the Council invited him to provide any evidence he has regarding the existence of further relevant records. I would encourage the applicant to provide any evidence he has which may assist the Council in its efforts to establish if it holds any further records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision, under section 15(1)(a) of the FOI Act, to refuse the applicant's request for further relevant records relating to items 1 and 8 of his request. I direct the Council to conduct a fresh decision-making process in respect of the applicant's request.

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