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

12 January 2024

Background

On 17 July 2023, the applicant originally made his request to the Office of the Planning Regulator (the Regulator) for information on the handling of a specific numbered enforcement file relating to a location in Cork City. The applicant said he was specifically seeking information on very early hours of vehicle access for delivery, numbers using it and the use of outside space for customers and vehicle parking in the vicinity. 

On 27 July 2023, the applicant wrote to the Council attaching a copy of the letter he had sent to the Regulator. He said that he had been advised by the Regulator to contact the Council directly for the information he requested. The applicant said he was requesting the information set out in his letter to the Regulator under the FOI Act. The applicant asked that he not be passed from the Planning Department to the Roads Department. He said that this was a Planning decision and said he was seeking the basis of its decisions on the specific enforcement file numbered in his request.

On 10 August 2023, the Council released a copy the relevant planning enforcement file to the applicant, with a small amount of personal information redacted under section 37(1) of the FOI Act. On 23 August 2023, the applicant requested an internal review of the Council's decision, saying the response he received was inadequate. He said that he needs to see how the decision was made, in light of his earlier letters in the matter and highlighted particular concerns he has about seating, parking and early morning activity at the location in question. On 13 September 2023, the Council issued its internal review decision affirming its original decision. The Council said that it was satisfied that it had issued all the records in the relevant planning enforcement file to the applicant, including the Planning Inspector's initial assessment, the recommendation for closure of the enforcement file and the Assistant Planner's report which included the reasons why the enforcement file was closed and how that decision was reached.

On 19 September 2023, the applicant applied to this Office for a review of the Council's decision. The applicant noted that the finished development is different to the original plans and said that he is seeking information on how the Council came to its decisions in the matter. In subsequent correspondence with this Office the applicant stated that he wanted the following information relating to the development:

1. How seating was granted outdoors along with enclosure structure which was not shown in the planning application and breached planning condition No.1

2. How car parking spacing specified in planning condition No. 5 was not adhered to and allowed to spread over to contributing streets in numbers far exceeding that stated in the planning process.

3. How the operation was allowed to continue very clear and continuous breaching of the 7:30am deliveries, contrary to planning condition No. 4.

The applicant maintains that the Council ought to have further information dealing with the questions above and disputes the Council's position that his request is limited to those records held by its Planning Department.

During the course of this review, the Investigating Officer asked the applicant whether he was seeking a review of the information redacted by the Council under section 37(1) of the Act. The applicant said he was not. The Investigating Officer provided the applicant with details of the Council's submissions to this Office wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that further records related to the applicant's request do not exist or cannot not be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did on 4 January 2024.

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, including the submissions made by both parties. I have also had regard to the content of the records released to the applicant. 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 his request exist which have not been released to him. As such, this review is solely concerned with whether the Council was justified in its effective decision to refuse, under section 15(1)(a) of the FOI Act, access to further relevant records that come within the scope of the applicant's FOI request.

Preliminary Matters

Before I address the substantive issue in this case, I wish to make a number of preliminary comments. Firstly, 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).

Secondly, 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 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.

Furthermore, I note that during the course of the review the applicant raised a number of issues about alleged breaches of the planning permission granted in relation to the development at issue which were the subject of his complaint to the Council and its subsequent planning enforcement investigation. I wish to explain to the applicant 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, for the benefit of the applicant, I also wish to explain that a review by this Office is limited to the wording of his original FOI request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request.

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. 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/he 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.

As outlined above, the Council provided this Office with details of its reasons for concluding the no further records within the scope of the applicant's request exist in this case, details of which were provided to the applicant. 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 Council stated that a complete copy of the planning enforcement file sought by the applicant was released to him. It stated that when a complaint is received in relation to planning enforcement, a hard and soft copy file is opened by the planning enforcement section of the Council. The Council said that all correspondence in relation to the enforcement issue is placed on the paper file which is maintained in the planning enforcement section of the Council. The Council stated that it also maintained an electronic copy of the planning enforcement file on the Council's secure network. It said that no records were destroyed, and that the planning enforcement file was closed in June 2023.

The Council stated that it had interpreted the request made by the applicant to be for records held or relating to the specific planning enforcement file. It explained that as the applicant had used the unique code applied only to planning enforcement files, it was understood that he was looking for records relating to the planning enforcement file. The Council stated that the planning section of the Council deals with planning enforcement and as a result the applicant's request was sent to the planning enforcement section of the Council and both hard and soft copy files were searched. It stated that as each file has a unique reference number, this number was the basis of the search. It stated that correspondence relating to enforcement issues is added to the relevant file as it is received, and that this unique reference number minimises the risk of correspondence being misfiled.

In its submissions to this Office, the Council said that it does hold some records relating to the three points referred to above that were raised by the applicant in his correspondence with this Office during the course of this review. However, the Council stated that these records do not form part of the enforcement file. The Council said that regarding point one, licensing for outdoor seating on a public footpath does not form part of a planning application and therefore cannot become a planning enforcement issue. It stated that such applications are handled by the Roads Operations Directorate in conjunction with the Development Management Section of the Council. It stated that any records in relation to outdoor seating may be available from the Roads Operations Directorate and would not be held on the planning enforcement file.

In regard to the second query raised by the applicant, the Council said that bollards were erected by the Roads Operations Directorate and that emails in relation to the confirmation of this are contained in the planning enforcement file provided to the applicant. The Council said that Planning Enforcement has no control over the spreading of parking into other areas around the location and that this is a matter for the Gardaí if parking of cars is causing a traffic hazard. In relation to part three of the applicant's correspondence with this Office, the Council said that Planning Enforcement were unable to find sufficient evidence that deliveries were taking place outside of the authorised hours laid down in the planning conditions. It said records relating to this are contained in the file released to the applicant.

In summary, the Council said that while it may hold records relating to the points raised by the applicant in his correspondence with this Office, any such records are outside the scope of the applicant's original FOI request as they are not contained on the planning enforcement file. The Council said the applicant requested the enforcement file and he was provided with a copy of this file.

In his submissions to this Office, the applicant disputes the Council's view that his request is limited to the enforcement file. He said that he requested the information from the Council and not specifically from the planning section of the Council. He stated that his questions related to traffic and outside construction also, which the Council has stated is outside planning. The applicant outlined his concerns relating to the development at issue and contends that the Council had erred in its decisions in the matter. The applicant said that this is not an appeal against the Council's decision and that he is asking for disclosure of the reasons the Council acted in relation to the points he raised above in his correspondence with this Office.

Analysis

Having carefully considered the applicant's arguments that his request was not limited to the Council's enforcement file, I do not agree that this is the case. As outlined above, the Council stated that in his original request the applicant referred specifically to the handling of the relevant enforcement file. Additionally, the Council noted that the applicant specifically requested that his request not be passed from "Planning to Roads", as it was a planning decision. Accordingly, I am satisfied that the Council's interpretation of the scope of the applicant's request was reasonable in the circumstances. As such, I am satisfied that records other than those held by the Planning Enforcement Department of the Council are outside the scope of the applicant's request.

In regard to the possible existence of further relevant records within the Planning Enforcement Department, the question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records. This Office does not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that 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.

Given the Council's submissions about its record management practices in relation to planning enforcement files and its efforts to locate the records sought by the applicant,

and in the absence of any evidence to suggest that further searches should have been undertaken, I am satisfied that the Council has taken all reasonable steps to locate the records sought in the applicant's FOI Request and that it has adequately explained why no further records within the scope of his request exist or can be found. In the circumstance of this case, I find that the Council was justified in refusing access to further records relating to the applicant's request under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

In conclusion, it is evident that applicant is unhappy with how the Council has handled his complaint about alleged breaches of the planning conditions concerning the development at issue in this case. The applicant is also unhappy that the records released to him by the Council do not adequately explain its decisions in relation to his planning enforcement concerns. As noted above, the Council's position is that it has released all relevant records held by its Planning Enforcement Department and that certain issues raised by the applicant are a matter for the Roads Department. It is open to the applicant to make a fresh request to the Council for any further records it may hold relating to the development at issue, including those held by the Roads Department, should he wish. Finally, while I appreciate the applicant may be seeking reasons for the Council's decisions in these matters and answers to his questions in this regard, as noted above the FOI Act does not require FOI bodies to create records in order to answer queries if records do not already exist, except in limited circumstances which do not apply in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's effective decision, under section 15(1)(a) of the FOI Act, to refuse further records relating to the applicant's request on the basis that no additional records exist or can be found that come within the scope of his original request after all reasonable steps to ascertain their whereabouts have been taken.

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