Decision
Ms X and Westmeath County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-146733-D8G8K0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146733-D8G8K0
Published on
31 January 2025
In a request dated 1 May 2023, the applicant sought access to all correspondence including internal and external emails, letters, WhatsApp and text messages from work and private accounts, to and from the Westmeath National Roads Office relating to a specified Westmeath planning file (the planning file). On 11 May 2023, the Council wrote to the applicant referring to her “original request” made on 16 April 2023, a copy of which has not been provided to this Office. In any event, it stated that the original request had been refined by the applicant on 2 May 2023 and it set out the following amended request:
1. All contents of the planning file.
2. All correspondence including internal and external emails, letters, WhatsApp and text messages from work and private accounts “referencing anything connected to” the planning file, to and from Westmeath Planning Authority employees.
3. All correspondence including internal and external emails, letters, WhatsApp and text messages from work and private accounts relating to the planning file, to and from the Director of Services for Westmeath County Council.
4. Minutes of every meeting about or including the contents of the planning file, to include lists of attendees, agendas, briefing documents and follow up emails.
5. All correspondence including internal and external emails, letters, WhatsApp and text messages from work and private accounts relating to the planning file, to and from Westmeath National Roads Office.
On 3 July 2023, the applicant sought an internal review as she had not received a decision from the Council on her amended request. She did not object to the wording of the amended request set out above by the Council. The Council issued an internal review decision on 24 July 2023, part granting the applicant’s amended request as set out above. Its decision was set out in a records schedule attached to the letter, which indicated that the hardcopy planning file sought in part 1 of her request was available for viewing in the Council’s offices, or online at a link it provided. The Council stated that there were approximately 270 emails relating to parts 2 and 3 of her request. It estimated that it would take 13.5 hours to “retrieve, print and scan the emails” which would cost €270 and notified her that she would have to pay a deposit of €54 if she wished to proceed with these parts of her request. It also indicated that it was relying on section 15(1)(a) of the FOI Act in relation to part 4 of her request as the records sought did not exist. The Council also stated that any records held relating to part 5 were included in the publically available planning file referred to above.
It appears that the applicant paid the search and retrieval fee of €270 in full on 27 July 2023. On 27 September 2023, she contacted the Council seeking an update as it had released the records relating to parts 2 and 3 of her request. The Council undertook to check matters with its FOI Officer and revert to the applicant. On 16 October 2023, she contacted the Council again as she had received no further contact. The FOI Officer indicated that she would “once again” request the documents/emails from the Council’s Planning Department and forward them “as soon as possible”. On 1 November 2023, the applicant contacted this Office querying whether there was a statutory timeframe regarding the release of records under FOI. She also contacted the Council again on 6 and 23 November 2023, seeking access to the records.
On 8 December 2023, the applicant applied to this Office for a review of the Council’s effective refusal to grant access to records relating to parts 2 and 3 of her request. This Office set up casefile OIC-144523-V7N2T2 and sought to clarify matters with the FOI body. From subsequent correspondence received from the Council, it appears that the records in question were not provided to its FOI Officer until 21 December 2023, some five months after the applicant had paid the relevant search and retrieval fee. The Council provided a copy of the records relating to parts 2 and 3 of the applicant’s request to this Office on 15 January 2024. However, it also appears that the Council did not provide a copy of the records to be released to the applicant until 17 February 2024, and only then on foot of a query from this Office. Once the applicant confirmed receipt of the records, this Office closed the relevant casefile.
On 15 February 2024, the applicant confirmed to this Office by telephone that she wished to apply for a review of the Council’s decision, and the current case was set up. On 8 March 2024, the applicant made submissions to this Office in support of her view that further records relating to her request should exist. She also indicated that she wished the submissions she made in respect of the previous case, dated 2 January 2024, to be considered as part of this review. While the applicant did not refer to the Council’s decision on parts 1-5 of her request individually, I am satisfied that her submissions can be taken as implying that she believed that additional records should exist in relation to all five parts of her request.
On 12 June 2024, I sought submissions from the Council in respect of its decision. In particular, I sought a response to matters raised by the applicant. However, the Council did not address this part of my letter in its response provided on 4 July 2024. On 12 August 2024, I contacted the Council again, seeking a response to all of the specific queries raised. On 23 August 2024, the Council provided further submissions. The applicant was put on notice of the Council’s response and she made further submissions. Her comments were put to the Council who made additional submissions in response.
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 parties as set out above. I have also had regard to the contents of the records located by the Council in relation to the applicant’s request. I have decided to conclude this review by way of a formal, binding decision.
Before I address the substantive issues arising, I would like to state that the Council’s processing of the applicant’s request and engagement with the review process has fallen short of what this Office would expect from an FOI body. As noted above, the applicant made her amended request on 1 May 2023, but no decision issued until 24 July 2023, in response to her internal review request. Furthermore, I note the many delays experienced by the applicant before she was provided with the records released. I also note that the Council did not provide all of the information sought by this Office in response to my letter seeking submissions, dated 12 June 2024, which delayed matters further. I would remind the Council that prompt responses from FOI bodies play a crucial role in this Office’s review process and I would expect it to respond in a complete and timely manner in future.
The records released by the Council were not all released in full. Some had redactions relating to other planning files and various third party individuals. I contacted the applicant when this case was assigned to me and informed her that I was satisfied that the information withheld from certain records by the Council did not relate to her request and that the Council's decision to withhold access to this information would not form part of this review. The applicant did not object to this in her response.
Accordingly, this review is solely concerned with whether the Council was justified in refusing access to additional records relating to the applicant’s request under section 15(1)(a) of the FOI Act, on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
As set out above, the applicant remains of the view that additional records relating to her request should exist. The Council’s position is that all relevant records have been located and released in full or in part. Accordingly, the Council is relying on section 15(1)(a) of the FOI Act.
Section 15(1)(a)
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 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 their 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.
Submissions of the parties
As noted above, both the applicant and the Council made submissions to this Office. The Council outlined the searches it undertook in an effort to locate relevant records, as well as details of the reasoning it relied upon in concluding that no additional records exist. These details were provided to the applicant. While I do not propose to repeat those submissions or details in full here, I confirm that I have had regard to them for the purposes of this review.
The applicant’s submissions
In her submissions to this Office on 9 March 2024, the applicant identified various categories of records which she believed to have been omitted from the records released. These included records relating to meetings about the planning file; records created before 17 November 2020, which might relate to changes in the planning notice on the site, or pre-planning meetings held with the Council; records concerning the Council’s Chief Executive’s involvement with the relevant planning file; records of relevant WhatsApp/text messages; and correspondence from a specified third party individual. She also queried the lack of search details provided by the Council in its decisions.
The Council’s response
I put the matters above to the Council. Essentially, the Council’s positon was that additional records relating to the applicant’s request do not exist. It stated that the relevant staff members and its ICT Department had been asked to search emails for relevant electronic records, which had been located and released to the applicant. The Council also stated that it had retrieved and cross-checked the relevant planning file from the Civic Offices in Athlone and ensured that the hardcopy file had been fully scanned onto its iPlan system and was available online.
In response to the specific queries raised by the applicant, the Council’s position was that its staff did not use personal email accounts for official business. It stated that its ICT department established systems to facilitate the remote delivery of Council functions in accordance with normal policy during the Covid-19 pandemic. The Council stated that no briefing documents, minutes or follow up emails relating to meetings about the specified planning file exist. It indicated that any meetings referenced in the records released were administrative in nature and references to planning applications in advance of such meetings was merely in order to inform decision makers which applications would be coming due for consideration. The Council’s position was that the details of the specific planning application were not discussed at the meetings concerned.
The Council also stated that it held no pre-planning application meetings with the developer concerned and said that applicants may update/change a site notice prior to the submission of a planning application of “their own volition”. It stated that it held no records dated before November 2020 relating to these matters. The Council also stated that only one file existed in relation to the planning application concerned and that despite a reference to the file originally being assigned to the Chief Executive, it was the Director of Services who made the decision on the planning file and that no separate file was held by the Chief Executive on this matter.
In relation to the applicant’s query concerning an email from a third party, who she believed had also sent emails to the Council on 15 and 23 March and 20 April 2023, which were not included in the records released, the Council stated that it had not initially conducted any searches using the third party’s name, but that it had now instructed staff to do so. The Council has not come back to this Office in relation to these records.
Additional queries raised by the applicant
I notified the applicant of the Council’s responses and she raised some additional queries, as set out below, which I also put to the Council for comment.
1. The applicant stated that she did not receive any records relating to the grant of planning permission by the Director of Services, other than a reference in an email chain to him signing off on the matter. She said that, bearing in mind that there were no formal meetings in this decision-making process, despite the fact that this was “a decision concerning strategic infrastructure” which involved “the relatively rare process whereby a local planner’s recommendation was overruled” it was reasonable to assume that records might exist of communications between the Director and the local planning team/external agencies to inform the decision-making process.
2. The applicant also suggested that there might be correspondence with government Departments, or advice/guidance sought by the Director of Services from other sources.
3. The applicant was not satisfied that the Council had adequately addressed the matter of WhatsApp and text messages and asked if it could clarify whether a search of messages on work mobile phones was conducted, in particular regarding her request for records from the Director of Services. She stated that “normal working” might include sending a text message to clarify, question, or provide a short update on a work project.
4. The applicant queried whether the Director of Services had used relevant search terms such as “Eir exchange”, “strategic infrastructure”, or “telecommunication infrastructure” when searching for relevant files or if he had solely used the planning file reference. She was of the view that records might exist relating to these matters broadly, which might also relate to the specific planning application in this case.
5. The applicant queried the absence of details of hardcopy searches conducted, and noted that the search details provided solely related to, and records released solely comprised, electronic records. She stated that the Council’s records management policy did not set out what the planning file should contain and queried whether any additional hardcopy records were held elsewhere.
6. The applicant noted that the planning file was originally assigned to the Chief Executive, but that the Director of Services made the decision. She queried whether the delegation of the decision-making role in this case was made formally and if so, was this delegation part of the planning file?
The Council’s response
The Council maintained its positon that no further records exist. It stated that the development in question does not constitute strategic infrastructure. It said that there was no correspondence between the Director of Services and the local planning team, external agencies or Government Departments in relation to the planning file. The Council also stated that “[r]ecords were sought from all parties” and that there were “no WhatsApp or test message exchanges found”. Its position was that there was one hardcopy file relating to the planning application concerned and that it contained all the hardcopy correspondence relating to the application and that it was also available to view online. The Council also stated that the relevant decision making powers were delegated to the Director of Services under a Chief Executive order and that no derogation was necessary. It indicated that it used three variations of the planning file reference in its electronic searches to locate relevant records in this case, e.g. 12/345, 12-345 and 12345.
The Council stated that all planning decisions follow a standard procedure. It stated that the reason for the grant or refusal of the application by the relevant Planning Authority was set out at Schedule 1 of each decision. It stated that if a decision was made to grant the permission, associated control conditions are set out in Schedule 2. The Council said that if the decision maker did not accept the case planner’s recommendation, then the instruction to grant or refuse was set out in Schedule 3 of the decision. It stated that in this particular case, the Director rejected the planner’s recommendation to refuse permission, and instead directed that it be granted subject to control conditions and that this was set out in Schedule 3 of the decision, which was publically available.
Analysis
In summary, the Council’s position appears to be that there are two categories of records relating to the applicant’s request in this case. The first is what might be described as formal planning documents, such as applications, correspondence, submissions, reports and decisions relating to the relevant planning application which are held in two places: hardcopy records held on the planning file which is available for inspection in the Council’s offices and electronic versions of the hardcopy records which are available online. The second category of records could be described as any other records which might mention the planning file concerned, but which are not part of the planning file. The Council’s view appears to be that this second category of records solely comprises email correspondence, all of which it states has been identified and released to the applicant in this case.
On the other hand, the applicant is of the view that planning matters do not solely result in emails or documents on the planning file. Her position is that staff members might send messages by mobile phone when they are inspecting sites, that they might create meeting minutes having discussed individual applications, or that decisions relating to who was to be the final decision maker on a planning file would involve specific delegations of powers.
I can understand that the delays in the records being released by the Council, and then only on foot of enquiries from this Office, may have given rise to a certain level of mistrust on the applicant’s part as to whether all records had been located. However, despite her careful examination of the records released and comprehensive follow up queries, there is little or no substantive evidence before me that additional records should exist in this case.
Essentially, the Council has stated that its staff correspond by email for the most part and that this was also the case during the Covid-19 pandemic. It also stated that all records relating to the planning file are held in hardcopy for inspection and published online in the electronic copy of the planning file. Its position appears to be that there were no records of any discussions of the particular planning file at meetings, or records of any advice sought before the Director made his decision. It also stated that no relevant WhatsApp or other text messages were located by the staff concerned. While I have sympathy for the applicant, and I am conscious that this matter has taken some time to be brought to a conclusion, there is no evidence before me that the process did not take place as the Council has outlined. I am also satisfied that the delegation of powers to the Director of Services was done once by the Chief Executive and is not done individually for each separate planning file.
However, as noted above, the Council has not replied to this Office in relation to the third party who had sent emails about the planning file. Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the Council to justify its decision to refuse access to the records concerned. In the circumstances, the Council has not satisfied me that it has taken all reasonable steps to locate records concerning correspondence submitted by the third party in question relating to the planning file.
Accordingly, I annul the Council’s decision to refuse access to additional records within the scope of the applicant’s request relating to the third party emails in question. The effect of this is that the Council must consider this specific aspect of the applicant's request again and make a new first-instance decision on that 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 she is not satisfied with the Council’s fresh decision. I would urge the Council to have regard to this Office’s published Guidelines in relation to section 15(1)(a) of the FOI Act and to the CPU’s website, which has published guidance and supporting materials for FOI bodies to assist them in carrying out their functions under the FOI Act, including information relating to the conduct of reasonable searches for the purposes of section 15(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was justified in refusing to release additional records relating to the majority of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be located. I annul its decision to refuse access to additional records relating to correspondence from a third party concerning the planning file under section 15(1)(a) on the basis that I am not satisfied that the Council took all reasonable steps in an effort to ascertain the whereabouts of these records. I annul that part of the Council's decision and I direct it to conduct a fresh decision making process on these records.
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.
Sandra Murdiff
Investigator