Decision
Ms X and Mayo County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-143810-C7W7T9
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Cite as: [2024] IEIC 143810
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Whether the Council was justified in refusing access to certain planning records under sections 15(1)(a) or 15(1)(d) of the FOI Act
30 July 2024
On 7 September 2023, the applicant made a request to the Council for the following planning records:
1. Written agreement by Mayo County Council to Mr. X to build a domestic Garage;
2. A copy of revised plans and elevations showing compliance with Mayo County Council planning permission P06/3285;
3. Retention for a domestic wall as per Ref: P18(902) 6/04/2005;
4. Proposal to make domestic percolation area compliant with SR6 of 1991 dated 10/01/07;
5. Details of Mayo County Council actions on enforcement of the above FOI 1582, FOI 1622, FOI 1827, FOI 1834, FOI 2101.
In a decision dated 5 October 2023, the Council part-granted the applicant's request. It refused access to records relevant to parts 1 and 4 of the applicant's request under section 15(1)(d) of the Act on the ground that the information is already in the public domain. It refused access to records relevant to parts 2 and 3 of the applicant's request under section 15(1)(a) of the FOI Act on the ground that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Finally, the Council granted access to certain records relevant to part 5 of the applicant's request and it refused access to further records relevant to part 5 of the request under sections 15(1)(i), 35(1) or 37(1) of the Act. On 9 October 2023, the applicant requested an internal review of the Council's decision to refuse access to records relevant to parts 1-4 of her request. On 6 November 2024, the Council affirmed its original decision. The Council stated that for the applicant's convenience, it was providing copies of all records refused under section 15(1)(i) of the Act and all records refused as a duplicate of records already released to the applicant. On 10 November 2023, the applicant applied to this Office for a review of the Council's decision.
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 submissions made by the Council in support of its decision, to the applicant's submissions to this Office and to copies of records provided by the Council to this Office. I have also had regard to the provisions of the FOI Act 2014. I have decided to conclude this review by way of a formal, binding decision.
The applicant's FOI request contains 5 parts. In her internal review request, the applicant
stated "the following documents are missing from my FOI request and have not been provided under a previous FOI appeal in which I was told there was no more documents. I'm requesting a review of my FOI request in light of this withholding of my information-¦" The applicant went on to list parts 1 to 4 of her request, she did not include part 5 in her internal review request. This Office does not have jurisdiction to review the Council's decision in relation to particular records where the applicant has not included those records in her internal review request. I am therefore of the view that part 5 of the applicant's request falls outside the scope of this review.
Following her internal review request, the applicant wrote to the Council on 12 October 2023 and stated that she was also looking for copies of certain text messages, letters and emails including correspondence with the fire department and correspondence with a senior planner and all information that she had not received before on this case. I also note that in her application to this Office, the applicant stated she is looking for all records regarding the case with no exclusions from any media. She stated that she never received copies of the text messages she requested. The applicant's FOI request does not refer to text messages or correspondence with the fire Department or a senior planner etc. This Office does not have jurisdiction to consider the release of any records/information that the applicant did not seek in her FOI request. Accordingly, the scope of this review is confined to the following questions:
● Whether the Council was justified in refusing access to records which relate to parts 1 and 4 of the applicant's request under sections 15(1)(d) of the Act;
● Whether the Council was justified in refusing access to records which relate to parts 2 and 3 of the applicant's request under sections 15(1)(a) of the Act.
Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall generally 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.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis may be limited in places.
The Council has refused access to records relevant to parts 1 and 4 of the applicant's request on the basis of section 15(1)(d) of the Act. Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. As outlined above, part 1 of the applicant's request seeks access to the written agreement by Mayo County Council to Mr X to build a domestic garage and part 4 of the request seeks access to the proposal to make the domestic percolation area compliant with SR6 of 1991 dated 10/01/07.
The Council states that the records referred to in parts 1 and 4 of the applicant's request may be accessed on its website using the direct link to the IPLAN system https://www.mayo.ie/planning/search . It states that the record referred to in part 1 is referred to as "Final Grant" on the IPLAN system. It states that the record referred to in part 4 namely "Proposal to make domestic percolation area compliant with SR6 of 1991 dated 10/01/07" is referred to as "COVER LETTER" on the IPLAN system. The Council states that in order to assist the applicant to easily locate these documents on its website, it provided the applicant with a document entitled "instructions for undertaking online planning searches utilising the IPLAN system". In summary, the Council states that as the records requested in parts 1 and 4 are already in the public domain and are publicly available via https://www.mayo.ie/ planning/search , the release of these records was refused under section 15(1)(d) of the FOI Act.
The Council also provided this Office with its instructions for undertaking an online planning search using the IPLAN system. Following the instructions provided, the "Final Grant" relevant to part 1 of the request and the "COVER LETTER" relevant to part 4 of the request can easily be located on the IPLAN system using the relevant planning reference number. These records can be found at: https://www.eplanning.ie/MayoCC/AppFileRefDetails/ 063285/0 . During the course of the review the Council also provided this Office and the applicant with hard copies of the Final Grant of Planning Permission requested in part 1 of the request and the "COVER LETTER" requested in part 4 of the request. I am satisfied that these records are in the public domain and I find that section 15(1)(d) applies to them.
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office's website at www.oic.ie).
During the review process, this Office's Investigator asked the Council about the steps it had taken to search for records within the scope of the review and its record-management practices. The Council response to these queries was provided to the applicant and is set out in summary here. It includes details of the sections of the Council to which the FOI request was circulated and the searching mechanisms utilised.
The Council states that its Planning Department is obliged to hold planning records indefinitely and it does so in a variety of forms comprising the planning register. It states that records of planning applications received after 2002 are available online on IPLAN and applications received prior to that are held on microfilm. It states that hardcopy planning files received prior to 2009 involving domestic development are no longer held by the Planning Department having being destroyed, on a phased basis, in accordance with its current retention policy which is the Planning and Development Retention Schedule which was issued in 2018.
In relation to part 2 of the request, the Council states that it holds a letter dated 21 August 2007 from Mr X's planning agent to the Council which states "We enclose a copy of the revised site layout plan indicating the location of the existing facilities on site." The Council states that it also holds a planner's report/recommendation dated 14 September 2007 which mentions in both conditions 1 and 3 of the planning permission "as shown on the site layout plan submitted on 21 August 2007". The Council's Head of Planning Administration states that despite her investigation of all records on IPLAN file P06/3285 she was unable to locate the site layout plan. She states that, in addition, she personally investigated the Council's Archives and she confirmed that no hardcopy files relating to domestic planning developments circa. 2005, 2006, and 2007, are held by the Planning Department, in accordance with the Council's Data Retention Policy. She states that as the planner concerned vacated his employment with the Council over 12 years ago, it has no means of carrying out further searches for the missing record. The Council states, therefore, that section 15(1)(a) of the FOI Act applies to part 2 of the request.
In relation to part 3 of the request, the Council states that it holds a report dated 06 December 2006 by the Planning Enforcement Section which was released to the applicant following a previous FOI request. It states that this report concludes that the boundary wall between Mr. X's house and the applicant's house exceeds 1.2m in height to the front of Mr. X's house by circa 3m, however this is deemed to be a minor or trivial breech as described under section 152 of the Planning and Development Act 2000. The Council states that if a breach is considered trivial, no further planning enforcement action will be taken. The Council states that there was no application made for retention of a domestic wall as per Ref: P18(902) 6/04/2005 nor was an application for retention required and the matter was not pursued by the planning enforcement section of Council. It states that the record requested in part 3 of the request does not exist and therefore 15(1)(a) of the Act applies to this part of the request.
As outlined above, this Office updated the applicant with details of the searches that the Council said it undertook to locate all relevant records and provided her with an opportunity to make comments. In reply, the applicant said condition 2 of the planning permission provides that the proposed domestic garage shall reflect the design characteristics of the dwelling house and revised plans and elevations showing compliance with the requirements of this condition shall be submitted to the Council for written agreement prior to any development commencing on site. The applicant asked for clarification in relation to whether the Council holds revised plans and elevations showing compliance with condition 2. In reply, the Council stated that its planning department checked the scanned documents available on IPlan/Idocs and it has no record of compliance documents having been submitted as compliance with condition no. 2 of the planning permission P06/3285. The Council said that it should be noted that the onus is on an applicant to submit any compliance required by condition rather than the local authority pursuing same.
I accept the applicant's contention that a copy of the revised site layout plan relevant to part 2 of her request ought to exist and I note that the Council's itself accepts that a number of the records on its IPLAN system reference the Council receiving this record. However, it is important to note that section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite searches for records simply because an applicant asserts that records should or might exist.
Having regard to the Council's submissions, and in the absence of evidence to suggest that additional searches might be warranted, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant. In the circumstances, I find that the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to parts 2 and 3 of the applicant's request on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision on parts 1, 2, 3 and 4 of the applicant's request on the basis that sections 15(1)(a) and (d) of the FOI Act apply.
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.
Jim Stokes
Investigator