Decision
Mr D and Galway County Council
From Office of the Information Commissioner (OIC)
Case number: 130291
Published on
From Office of the Information Commissioner (OIC)
Case number: 130291
Published on
Whether the Council was justified in its decision that the records sought by the applicant relating to planning permission conditions do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act.
10 April 2014
The applicant submitted an FOI request to the Council on 9 September 2013 requesting the following records in relation to planning reference number 09/1958(PL07.235821):
I. Copies of the monitoring programme and qualifications and acceptance notes regarding the suitability of the 'qualified person' by Galway County Council (Condition 15(b) of the planning permission conditions).
II. A copy of the comprehensive proposal specifying locations, duration, and methods of monitoring agreed with the planning authority (Condition 17 of the planning permission conditions).
III. A copy of the remedial procedure agreed with Galway County Council in the event of quarrying activities having an adverse effect on private wells and water supplies (Condition 18(a) of the planning permission conditions).
IV. A copy of the written approval by Galway County Council of the independent environmental auditors (Condition 22(a) of the planning permission conditions).
The Council did not reply to this request which is deemed to be a refusal under the FOI Act. The applicant sought an Internal Review of his application on 9 October 2013.
In its Internal Review decision the Council stated that it had decided to grant the request and attached a copy of the Environment and Audit Report carried out by Irish Concrete Federation. This report was received by Galway County Council on 15 July 2013 and is deemed to satisfy conditions of planning - PL 07.235821.
The applicant was not satisfied with this response and applied to this Office for a review of the Council's decision on 17 November 2013. The applicant stated that it was apparent from reading his FOI application that the request was not in fact granted. The applicant stated that the information that was sent purporting to grant his request was not the information requested and that the information sent was already available in the public domain.
On investigation of this application the Council, in reviewing its decision, stated that it did not hold any further records relating to the applicant's request. I note that Ms Anne O'Reilly of this Office advised the applicant that the Council had stated it's position that it did not hold any further records relating to the request,and that she considered that the Council had taken all reasonable steps to locate the records sought by the applicant. The applicant indicated that he wished the Information Commissioner to make a binding decision in this matter and so it is my view that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
• the decision of the Council on the matter and its communications with this Office;
• the communications of the applicant with this Office and the Council;
• the provisions of the FOI Act.
I note that the applicant submitted a response to Ms O'Reilly's email of 19 February 2014 and I have also had regard to the contents of that response.
Following investigation it is the position of the Council that it does not hold any further records relating to the applicant's FOI request, other than those already released. Therefore this review is concerned with the question of whether the Council is justified in refusing access to the information requested on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist. It is important to note that this Office cannot deal with issues that fall outside the scope of the FOI Act.
Section 10(1)(a) of the FOI Act states:
10 (1) A head to whom a request under section 7 is made may refuse to grant the
request if -
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken
In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
In this particular case the applicant stated in his application that the records requested are required to be prepared by provisions of the planning conditions. The Council have stated that the records requested do not currently exist, outlining the following reasons:
Details of the ongoing planning enforcement case were not provided by the Council and were not requested by this Office as they fall outside the scope of this review. In implementing the FOI Act the Commissioner is primarily concerned with ensuring access to existing records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. The Commissioner does not have the authority to require a public body to create records that do no exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
While it appears from the Council's submission to this Office that some of the information requested by the applicant may become available at some future date, this review is concerned solely with the records which come within the scope of the applicant's request at the time the request was made to the Council. It is open to the applicant to submit a new request to the Council to seek access to any further records which may become available in due course.
The position of the Council is that the records requested by the applicant do not exist. Having considered the matter I find that the Council is justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the revised decision of the Council.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator