Decision
Mr Q and Waterford City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152326-C7B3M5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152326-C7B3M5
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to works at the site of a public footpath on the ground that no further records exist or can be found
18 March 2025
This review arises following two previous decisions by this Office relating to the applicant’s FOI 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.”
On 9 November 2022, following our first review of this matter, this Office’s Senior Investigator 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 having taken an unduly narrow interpretation of the scope of the applicant’s request (Our reference OIC-123481).
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. Following the Council’s subsequent decision on these matters, the applicant applied for a review of the Council’s decision in respect of items 1,2 and 8 of the fourteen queries. I subsequently annulled the Council’s decision in relation to items 1 and 8 of the request and directed it to consider these two items afresh.
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. I was not satisfied the Council had demonstrated it had undertaken all reasonable searches to locate the relevant records relating to item 1 of the applicant’s request.
Item 8 of the applicant’s request sought “All emails, notes and records relating to works on this section of public road and footpath”. I found that the Council 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) of the FOI Act. 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.
On 30 July 2024, the Council issued a new decision to the applicant stating that it had granted the applicant’s request in full with the redaction of some personal information under section 37(1)(a) of the Act. According to the Schedule of Records, the Council released a total of 77 records comprised of over 400 pages including email correspondence, engagements with contractors, various reports, and evidence of searches conducted for records related to the applicant’s request. I understand that many of these records had been released to the applicant previously.
On 27 August 2024, the applicant requested an internal review of the Council’s decision. On 20 September, the Council affirmed its original decision. On 26 September 2024, the applicant applied to this Office for a review of the Council’s decision. The applicant maintains further records ought to exist and referred specifically to:
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 both parties to this review. I have decided to conclude this review by way of a formal, binding decision.
While it is the Council’s position that it has released all relevant records, the applicant 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 records relating to parts 1 and 8 of the applicant’s request, as outlined above, that come within the scope of the applicant’s original request, for the time period from 1 January 2018 to 17 November 2021.
Section 15(1)(a)
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.
In its submissions to this Office, the Council said it has a well-structured records management system in place called Sharepoint and this allows staff to save records and correspondence within relevant folders. It said the Roads Department has its own site within Sharepoint, making searches for records within folders easy to carry out. The Council said it also has a CRM system which records customer contacts with the Council, customers receive a ticket number confirmation of their contact and staff respond via that system or by email. It said the public can also contact staff directly using individual email accounts. The Council said the applicant had the direct emails of the relevant engineers in this matter and mainly corresponded with them in that manner.
The Council referred to its previous responses to this Office and the searches it carried out including searches on Sharepoint for electronic records using search criteria including the applicant’s name, the location, and key words like “development Cheekpoint” and “footpath Cheekpoint.” It said it carried out a search for physical records held by the two Metropolitan District engineering staff who were involved in this matter. It said the search for physical records related to hard copy files that were located in both of their offices. This, the Council said, was the only location where records would have been held and a thorough search of both offices was carried out. It said that searches were also carried out on the email accounts of these engineers. The Council said the results of these searches were reviewed and all additional internal personnel included in the email records found were also requested to carry out similar searches. It said phone calls and conversations were also had with the relevant staff by those carrying out the internal reviews and also for the subsequent OIC reviews. The Council said relevant third parties were contacted and the results of those contacts and records received were released as part of the last review. The Council also stated that at least 2 meetings were held with the applicant and his sister to try and establish exactly what they were looking for. The Council said the records found as a result of all physical and electronic records were released to the requester.
The Council said that the applicant is convinced that the Council holds information and records on damage done to the road during excavations. It said, as there was no damage to the road there was no additional works and consequently the Council does not hold any such records, i.e. the records do not exist. The Council said it has always been clear about this. The Council said that requests for records related to the unauthorised development in the vicinity of the relevant section of road, in so far as they do not relate to the section of road, remain outside of the scope of the request. The Council suggested the applicant can make further requests in relation to Planning Permissions or Unauthorised Developments for records not available online, if he wishes to do so.
With respect to service providers, the Council said it contacted seven service providers (contractors) to establish if they held any relevant records that might be captured by section 11(9) of the FOI Act. It said the contractors were contacted on 20 May 2024 and given a deadline of 31 May 2024 to respond. The Council said only one contractor responded and that it released the records provided by that contractor to the applicant (Record 76 on the Schedule of Records). A copy of the correspondence sent to each contractor is contained in Records 69-75 of the Schedule of Records. The Council said, as far as it is aware, all of the contractors are still trading.
In conclusion, the Council said it has been dealing with this request since 2021 and has put considerable resources into it in an effort to assist the applicant in his search for records. The Council contends that it has gone over and above what is reasonable, in this case to assist the applicant and his sister. The Council said it can only provide records where they exist and although the applicant is convinced that other records should exist, they do not. The Council said it has released all records in its possession and cannot do any more in this case.
The Investigating Officer provided the applicant with details of the Council’s submissions and invited him to make further submissions, which he duly did. The applicant referred to both previous decisions by this Office in support of his argument that further records ought to exist. He said that he has still not received information he requested at his meeting in April 2024, which was arranged to discuss his request following my decision on 28 February 2024 in case OIC-140040.
The applicant said the Council has not provided him with information such as the up to date construction management plan (part of planning requirements) which should hold answers to all works completed as well as problems encountered and which should narrow their extensive searches and time spent on same to provide answers. Nor, the applicant contends, have any site inspection or site excavation reports or correspondence with the excavator been provided which would be relevant to the Council as excavation took place directly beside the footpath and the footpath was later built inwards on this private land. The applicant also said, although surveys were provided, no correspondences, such as emails, from the named Engineering company have been provided although they worked on this development, the new footpath plus the main road for both the Council and for the Developer all within this area. The applicant noted that although the Council provided some details relating to contractors, they did not provide communication from them all, particularly relating to the earlier development as well as excavation undertaken during this period. He also said he is seeking proof that the road and elevated footpath in question is safe. The applicant said that at no stage was he looking for copies of his own correspondence and suggested there seems to have been some confusion around this.
As the Senior Investigator noted in his decision on our first review of this matter, requests that seek access to “all correspondence relating to” a particular matter or subject invariably run the risk of giving rise to disputes in relation to the scope of such requests. While I note both parties have engaged with each other in an attempt to clarify the precise scope of the applicant’s request, the applicant still believes that further records ought to exist. It is important to clarify here that this review is only concerned with records that exist relating to items 1 and 8 which were the subject of my decision in case OIC-140040 where I remitted those two parts back to the Council to reconsider. In that decision, I found that the reason provided by the Council that no further records existed in relation to the impact on the road was insufficient. As noted above, the Council said that the applicant is convinced that the Council holds information and records on damage done to the road in question during excavations at an adjacent site. It said, as there was no damage to the road there was no additional works and consequently the Council does not hold any such records.
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 arise where records are lost or simply cannot be found. What the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate relevant records. We do 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. It seems to me that the Council has made significant efforts to respond to the applicant’s request and his queries in relation to the site in question in this case. While it seems to me that the Council has undertaken all reasonable steps to locate any relevant records it holds within its own records management systems, I am still not satisfied that all reasonable steps have been taken to ascertain whether the contractors which the Council contacted may hold further relevant records.
Section 11(9) of the FOI Act 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.
I note that the Council sent an email to seven contractors which it deemed may hold relevant records. Only one of those contractors replied to the Council. I note the Council released the records provided by the contractor who did respond to it. The question remains, however, whether any of the other contractors hold any relevant records. 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. In my view, a single email from the Council without any further follow-up cannot be considered to be all reasonable steps to determine if the contractors hold relevant records. At a minimum, I would expect the Council to show that it followed up with each contractor that did not respond to the request for records. Furthermore, in the email which the Council sent to each contractor on 20 May 2024, I note the Council simply asked the contractor to check their records and to provide all relevant records. In my view, these emails should have made it clear that any relevant records in the possession of the contractor are deemed to be held by the Council and that the Council has a right to have these provided to it for FOI purposes. I suggest the Council contact the remaining contractors again and explain their obligations in this regard.
In conclusion, in the absence of further efforts by the Council to ascertain whether the remaining contractors hold any relevant records, I simply cannot find that section 15(1)(a) of the Act applies at this time. Accordingly, I direct the Council to reconsider the applicant’s request afresh and in doing so to take all reasonable steps to ascertain whether the remaining six contractors hold any records relevant to the applicant’s request.
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 to potential records that may be held by the contractors, as outlined above.
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