Decision
Mr. Ken Foxe, Right to Know and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-155727-K0T2N1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155727-K0T2N1
Published on
Whether the OPW was justified, under section 15(1)(a) of the FOI Act, in refusing access to copies of any correspondence between the OPW and a named company with regard to the cost overruns or project delays in the delivery of the Leinster House bike shed project
28 April 2025
In a request dated 29 October 2024, the applicant sought access to copies of any correspondence between the OPW and a named company with regard to cost overruns or project delays in the delivery of the Leinster House bike shed project. On 29 November 2024, as the OPW did not issue a decision within four weeks, the applicant sought an internal review of its deemed refusal of his request. On 22 January 2025, the OPW refused the applicant’s request under section 15(1)(a) of the FOI Act. On 23 January 2025, the applicant applied to this Office for a review of the OPW’s decision. The applicant contends there were significant delays in the delivery of the project.
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 referred to above and to the submissions made by the OPW in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the OPW was justified, under section 15(1)(a) of the Act, in refusing access to any correspondence between the OPW and the named company with regard to cost overruns or project delays in the delivery of the Leinster House bike shed project, on the ground that no such records exist.
Section 15(1)(a) of the FOI 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 the 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 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.
During the course of this review, the OPW provided this Office with submissions detailing its reasons for concluding that no records relating to the applicant’s request exist or can be found. In its submissions, the OPW said that there are no records between OPW and the company relating to cost overruns or project delays in the delivery of the Leinster House covered bicycle shelter, because it never occurred. It stated that in terms of the programme, the OPW have flexible programmes at Leinster House that allow for stopping and starting works based on (a) discovery of unknown issues on site and (b) operations of the Houses of the Oireachtas. The OPW said that it does not consider any changes in how the projects evolve arising from these issues as ‘delays’. The OPW said that any pause in construction work arising from these two issues is not a delay in the traditional sense. It said that pauses in construction do not give rise to any additional cost in the project. The OPW said that there were no delay claims under the contract and as such, it is accurate to say there are no records in regard to the technical meaning of delay in construction projects.
The OPW stated that the design team is required to comply with the processes of the Capital Works Management Framework (CWMF), the OPW and the Infrastructure Guidelines for capital works projects. It said that the International Organisation for Standardization (ISO) system instructs how these records should be filed. It said that as such the OPW’s correspondence that is received or issued is placed on a case file and managed accordingly by the Design Teams file as per ISO. It stated that as required in the Project Electronic Filing Structure, any paper records held during the life of a project are destroyed at the end of the project once the Design Team Leader has confirmed that an electronic version is saved. The OPW stated, in line with policy, no electronic records relating to the request would have been destroyed.
The OPW said that upon receiving the applicant’s FOI request, an email was sent to the relevant OPW staff, asking that all staff conduct searches of their files in accordance with the applicant’s request and to identify any relevant information. It said that the staff member advised that no correspondence existed on cost overruns and project delays but attached emails that stressed the urgency of the project. One of the emails provided by the OPW to this Office contains a specific reference to work being done “without further delay”
The OPW said that this correspondence was not considered relevant to the applicant’s request.
The OPW stated that all relevant individuals involved with this project were consulted and advised that everything they received and sent is accounted for in relation this request. The OPW said that it emerged that the record the applicant was requesting did not exist, as it was never created. The OPW said that searches were carried out electronically on the project file, and that Capital Works Management Framework (CWMF). It stated that the definitive project brief sets out the initial project programme and a detailed programme is required in project execution plan. It said that this programme should be tracked and updated throughout the project so there is a record of changes to the programme but not specifically delays. The OPW said that capital works contracts have clauses that deal with delays on site and the tracking of this process should be filed. It said that these delays tend to relate to claims so they tend to be well document. The OPW said that all its correspondence that is received or issued is placed on a casefile by the project team. It stated that therefore it would not be necessary to contact the company in question to search for records relevant to the applicant’s request.
The OPW concluded that it does hold records relating to changes in the programme. The OPW stated that it is important to note that any changes to programme is not considered a delay. It said that Leinster House requires flexibility and as such, programmes allow for stopping and starting for unforeseen issues on site and for the operations of the Houses of the Oireachtas. When asked by the Investigating Officer if the OPW hold any records relating to pauses in construction or pauses in the project, the OPW said it does. However, the OPW said that any pause in construction work arising from the above two issues is not a delay in the traditional sense. Furthermore, it said it is important to note that pauses in construction do not give rise to any additional cost in the project.
It seems to me that the OPW took an unduly narrow interpretation of the applicant’s request, by stating that it does not hold records relating to a delay in the traditional sense. I note that the OPW said that it does hold records relating to a “pause” in construction in the project. I note too that one of the emails provided by the OPW to this Office contains a specific reference to work being done “without further delay”. Having regard to the ordinary meaning of the word delay, being a period of time in which something is late or postponed,
and to the OPW submissions in this case, I do not accept its argument about not having records relating to a delay in the traditional sense.
Furthermore, in regard to the OPW’s comment that pauses in construction do not give rise to any additional cost to the project, I note the applicant requested records relating to both delays in the project or cost overruns. The applicant’s request is not limited to records of delays in the project which gave rise to cost overruns, but also in my view includes any relevant records relating to delays in the project, whether or not any such delays resulted in cost overruns. I note there were a number of reports in the media about delays to the project. While this does not establish that relevant records necessarily exist, it seems to me that the OPW could have engaged with the applicant at the outset of his request to clarify its understanding of what constitutes a delay in the project and to explain the nature of records it holds concerning pauses in the project, with a view to determining the records at issue.
In the circumstances, I am not satisfied that the OPW was justified in refusing the applicant’s request under section 15(1)(a) of the Act on the basis that it has undertaken all reasonable steps to ascertain the whereabouts of any relevant records coming within the scope of the applicant’s request, and I find accordingly. However, I do not consider it appropriate in this case to direct the release of the emails that the OPW provided to this Office simply because the OPW took a narrow view of the request. Furthermore, it is not clear to me, given the OPW’s interpretation of the request, whether further relevant records may exist. In the circumstances, I consider the most appropriate course of action is to annul the OPW’s decision, the effect of which is that it must consider 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 he is not satisfied with the OPW’s decision. Finally, if the OPW is in any doubt about what records the applicant is seeking, I suggest it contact him to clarify same.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW’s decision under section 15(1)(a) of the FOI Act and I direct it to carry out a new decision-making process on the applicant’s request.
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