Decision
Ms M and Donegal County Council (the "Council")
From Office of the Information Commissioner (OIC)
Case number: 140013
Published on
From Office of the Information Commissioner (OIC)
Case number: 140013
Published on
Whether the Council was justified in its decision to refuse access to records relating to a named third party (the "Third Party") under section 10(1)(a) of the FOI Act, on the basis that certain records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had been taken, and on the basis that certain records sought are, in accordance with the provisions of section 46(2), not subject to the FOI Act
2 July 2014
On 18 November 2013, the applicant submitted a Freedom of Information request to the Council for access to 20 categories of records, all relating to a named Third Party (the "Third Party"), and in particular to grants received by the Third Party under the Peace II Small Grants Programme. By way of letter dated 16 December, 2013, the Council granted access to records coming under items 1, 2, 7, 9, 10, 13, and 15. Access to records coming under items 3, 4, 5, 6, 8, 11, 12, 16, 17, and 18 was refused under section 10(1)(a) of the FOI Act. Records coming under items 19 and 20 were refused, on the basis that these are publicly available planning records, which do not come within the scope of the FOI Act. In relation to item 14, this element of the request was premised on a particular event not having taken place. As, in fact, the event had taken place, the request became moot. The applicant sought an internal review of this decision by way of letter dated 17 December 2013. The internal reviewer upheld the decision to refuse access pursuant to section 10(1)(a) of the FOI Act. The outcome of the internal review was communicated to the applicant by way of letter dated 6 December 2013. On 13 January 2014, the applicant sought a review by this Office of the Council's decision.
I note that Mr. Niall Mulligan of this Office indicated to the applicant that the decision of the Council was justified in his view. The applicant did not offer any further submission to this Office and I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Council's decision on the matter and its communications with this Office, as well as the applicant’s communications with this Office and the Council. I have also had regard to the provisions of the FOI Act.
In her submissions, the applicant suggested that the powers of this Office extend to "the substance of the decision and how the decision was made ... [t]he procedural element is also relevant." The applicant claims that various acts of the Council in relation to her application were "unreasonable" and constituted "procedural abuse". She cited the well-known case of Meadows v. Minister for Justice [2010] 2 I.R. 701 in support of this contention.
This application relates primarily to a decision of the Council under section 10(1)(a) of the FOI Act. The appropriate basis for this Office's approach to such cases was approved by the High Court in Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie), and is set out in more detail below. Insofar as this Office will enquire into the "procedural element", this relates simply to the sufficiency of searches. It is not the role of this Office to make any determination in relation to the reasonableness or otherwise of administrative action by a public body.
The applicant also complains that redactions to figures were made on the basis of section 27(1)(b) of the FOI Act. Nowhere is it apparent in the Council's decisions nor in the schedule and records that redactions have been made, nor is there any reference to section 27(1)(b). Mr. Mulligan made a number of attempts to clarify this matter with the applicant, without success. In the circumstances, I do not consider it necessary to address section 27(1)(b) as part of this review.
This review is concerned solely with the questions of whether the Council was justified in its decision to refuse access to records coming under items 3, 4, 5, 6, 8, 11, 12, 16, 17, and 18 of the applicant's request pursuant to section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts; and in its decision to refuse access to records coming under items 19 and 20 of the applicant's request on the basis that these records are not subject to the right of access under the FOI Act.
The applicant’s original request was for access to 20 categories of records, all relating to the Third Party, and in particular to grants received by it under the Peace II Small Grants Programme.
Section 10(1)(a) of the FOI Act 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. The Commissioner's role in cases such as this is to review the decision of the public 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. 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 were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner.
In submissions to this Office, the Council outlined in detail the steps which had been taken in pursuance of the applicant’s request. The Council set out its file management policy in relation to records of this type, and indicated that all relevant records should have been added to the Third Party's file, during the time that it remained as an open project file. The file was retrieved from storage, but enquiries were also made of staff who had an involvement with the relevant project, "a Divisional Manager, Staff Officer and Clerical Officer", who confirmed that "all project related records would have been added to the file during the lifetime of the Peace II programme." The Council submitted that it did not consider it reasonable to carry out searches of archived files also relating to the Peace II programme, given the large number of records involved, somewhere in the order of 200 files, and the likelihood that all relevant records would in any event have been placed on the Third Party's file.
The applicant took particular issue with the Council's response in relation to Item 18 of her request, whereby she requested audited and certified accounts submitted by the Third Party to it. She felt that, having regard to other records furnished to her, such accounts should have been filed under the terms of the Peace II project, and therefore that relevant records must exist.
The Council indicated that inquiries had been made of "staff working on PEACE II projects at the time [who] confirmed ... that [the requirement to file accounts] was not always strictly enforced", and that had annual audited and certified accounts been submitted then these would have been added to the Third Party's file. The Council further submitted that it had granted access to records relating to financial management on the project under a separate FOI request, "including an audit checklist on Financial Management which includes responses to questions in relation to the project’s financial capacity to manage the project." I have no reason to doubt these submissions.
In implementing the terms of the FOI Act with regard to access to requested records, the Information Commissioner is concerned only with ensuring access to extant records in accordance with the provisions of the Act. The FOI Act does not provide for a right of access to records which ought to exist. It should be noted that the fact that one might expect that such records should exist, and that the absence of such records might suggest inadequate record keeping practices on the part of the Council, is not an issue in this review.
The position of the Council is that it cannot find any further records relevant to the applicant's FOI request. In the circumstances of this case, in my view it would be not be reasonable to ask the Council to commit to conducting further searches. I am satisfied that the Council has taken reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies in relation to items 3, 4, 5, 6, 8, 11, 12, 16, 17, and 18. I find accordingly.
The applicant did not make any submissions, either on internal review by the Council or to this Office, in relation to Items 19 and 20 of her request. However, in circumstances where it is not clear that she accepts the Council's decision in relation to these items, it is necessary for me to consider the position in relation to them. The applicant's request under these headings was for "[p]lanning permission submitted by [the Third Party]" and "[i]n the alternative ... the declaration that planning permission is not needed". Section 46(2) of the FOI Act provides, insofar as relevant, that:-
[T]his Act does not apply to—
(a) a record that is available for inspection by members of the public whether upon payment or free of charge ...
Planning records of the type sought by the applicant are available for inspection to the public. Therefore, I am of the view that the Council was justified in refusing her requests on the basis that these items are "not subject to FOI." I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Council in this case.
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.
Sean Garvey
Senior Investigator