Decision
Mr X and Roscommon County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-145135-M6F5N0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145135-M6F5N0
Published on
Whether the Council was justified in refusing access to a Feasibility Study under section 15(1)(a) of the FOI Act (reasonable searches/record does not exist)
7 May 2024
On 12 September 2023, the applicant made an FOI request to the Council for a copy of a particular Feasibility Study. The Council’s decision of 5 October 2023 refused the request under section 15(1)(a) of the FOI Act (reasonable searches/record does not exist).
The applicant sought an internal review of the Council’s decision on 6 October 2023. The Council’s internal review decision of 20 October 2023 affirmed its refusal of the request.
On 8 January 2024, the applicant applied to this Office for a review of the Council’s decision. As the applicant is aware, the Council located a copy of the requested record during my review.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Council and the applicant, and the provisions of the FOI Act.
The scope of this review is confined to whether the Council’s refusal of the applicant’s request was in accordance with the provisions of section 15(1)(a) of the FOI Act.
Section 15(1)(a) – reasonable searches/record does not exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
Further to my request for submissions on the matter, the Council informs me that it has now located a copy of the requested report. It says that its initial searches were seriously affected by the resignations and retirements of a considerable number of staff, particularly at senior level, from the relevant Business Unit that dealt with the matter.
Given that the requested record has now been located, I have no basis on which to find that the Council’s refusal of the request was justified under section 15(1)(a). I note that the Council is willing to release the report, subject to the redaction of exempt information and any external consultations that it may consider necessary. However, this Office is not a first instance decision maker. In the circumstances, it seems to me that the most appropriate step for me to take is to annul the Council’s decision on the applicant’s request and to direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s refusal of the applicant’s request of 12 September 2023 under section 15(1)(a) of the FOI Act. I direct it to carry out a fresh decision making process on the matter, in accordance with the provisions of the FOI Act.
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.
Anne Lyons, investigator