Decision
Mr J and the Department of the Environment, Community and Local Government (the Department)
From Office of the Information Commissioner (OIC)
Case number: 120325
Published on
From Office of the Information Commissioner (OIC)
Case number: 120325
Published on
Whether the Department was justified in its decision to refuse access to records relating to a Planning Review Report under section 10(1)(a) of the FOI Act on the basis that the record(s) do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
5 September 2014
On 9 July 2012, the applicant made a Freedom of Information (FOI) request to the Department of the Environment, Community and Local Government (the Department) seeking access to records relating to the Planning Review Report, June 2012. He asked for all records relating to Co Donegal including complaints and allegations made which gave rise to the review.
On 14 September 2012, the Department advised the applicant that it had identified 67 records which related to his request. It granted full access to 62 of these records, partial access to 3 and refused access to 2 records. On 27 September 2012, the applicant sought an internal review of the original decision. He maintained that the Department had not released the entirety of the records it holds in respect of the Planning Review Report.
On 30 October 2012, the Department affirmed its decision not to release 2 of the records and to partially release 3 records. The Department also identified 77 additional records which were not considered as part of the original decision. These comprised of records 1 to 63 and 14 documents appended to record 48. Of these 77 records, the Department granted access in full to 11 and partial release to 4. It denied access to the remaining 62 records on the basis that this element of the request was, in its view, frivolous and vexatious. The Department explained that the majority of the records were created by the applicant and submitted to the Department by him. The Department contended that the remainder of the records summarised the catalogue of allegations made by the applicant, the information in relation to which, the Department argued, was already in his possession. The Department also contended that many of the records in question had already been published by the Department as part of the Planning Review Report (June 2012).
On 17 December 2012, the applicant applied to this Office for a review of the Department's decision. He said that the Department had not identified the entirety of the documentation which he had requested. He stated that he was not appealing the non-disclosure of records, but solely the fact that the entirety of the records had not been identified in the Schedules which were sent to him. Subsequently, on 21 January 2013, he contended, among other issues, that there were other documents which were neither identified nor released to him. In this regard, he maintained that 7 specific documents had not been identified. These documents were dated 20 October 2009, 9 November 2009, 16 November 2009, 23 November 2009, 11 January 2010, 29 June 2011 and 26 September 2011. Furthermore, he maintained that there may be more documentation held which had not yet been identified by the Department.
In addition, he raised a number of issues in relation to the background to some of the records.
On 28 January 2013, the Department made a submission to this Office setting out its position and stating that all records associated with the request had now been identified.
On 10 April 2014, Mr Willy O'Doherty, Investigator, raised the applicant's concerns with the Department. The Department arranged fresh searches and on 28 May 2014, it released additional records to the applicant.
Subsequently, in his preliminary views letter to the applicant, dated 9 June 2014, Mr O'Doherty set out the situation in some detail following identification and clarification of outstanding matters. He explained that 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. In addition, Mr O'Doherty drew the applicant's attention to this Office's approach to the section 10(1)(a) exemption.
In carrying out my review, I have had regard to copies of the relevant records (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant, between this Office and the applicant, particularly the letter sent to him by the Investigator dated 9 June 2014 and to contacts between this Office and the Department. I have also had regard to the relevant provisions of the FOI Act.
As the time frame in which Mr O'Doherty invited a response to his preliminary views has now elapsed without reply from the applicant, I have decided to bring this review to a close by way of a formal binding decision.
The Department's position is that it has now released all relevant records relating to the applicant's request, apart from one record - dated 9 November 2009 - which the Department said was not recovered in the recent search. Accordingly, the scope of this review is concerned with whether Section 10(1)(a) applies and the Department was justified in effectively refusing access to further records on the grounds that no further records exist or that they cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Section 10(1)(a) of the FOI Act states:
"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned 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 and I must also assess the adequacy of the searches conducted by the public body in looking for relevant records. 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. Based on 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. 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 (2002 No. 18 M.C.A.) - copy of judgment available on this Office's website,www.oic.ie
Mr O'Doherty informed the applicant that the Department advised this Office that, as part of this review, all heads of relevant Sections in the Department were asked to arrange for further searches to be undertaken for any additional records, manual or electronic. It is not necessary for me to repeat the detail of the searches and other responses here.
I understand that those contacted, included the Secretary General, Assistant Secretaries, Planning Section staff (serving and former), Private Secretaries to Minister / Minister of State and the FOI Officer. Following these searches, the Department wrote to the applicant on 28 May 2014 and confirmed that a number of additional records might have been considered eligible for release had they been identified at the time of the FOI request.. These were:
A list of these records together with cross-references to material already released to the applicant, was set out in Appendix 2 to the Department's letter of 28 May 2014 to the applicant. Furthermore, a list of 54 representations (and associated correspondence) from the applicant to the Ministers’ Offices was set out in Appendix 3 to that letter.
In relation to the 7 specific documents (listed above), the Department said that 6 of these were identified in the Appendices which were sent to the applicant with its letter of 28 May 2014. It explained that one document - dated 9 November 2009 - was not recovered in this new search. However, it indicated that if further details in relation to this record were specified by the applicant, it would assist the Department in re-focusing any future searches. In addition, in his preliminary views letter, Mr O'Doherty addressed the various queries raised by the applicant in his letter of 21 January 2013.
It is fair to say that the handling of the matter gave rise to some confusion as to the proper scope of the review. For example, there appears to have been uncertainty at times as to whether the FOI request was intended to cover records which the applicant already held (i.e. correspondence between himself and the Department). Eventually, the Department addressed the issues comprehensively in May 2014. The Department's response covered such issues as authorship of certain records and whether others were duplicates. This was in response to queries raised by the applicant. As Mr O'Doherty advised the applicant, the FOI Act does not oblige a public body to prepare a record containing explanations and background if such information is not already contained in records within the scope of the FOI request. However, I consider that, in this case, the Department's addressing of detailed queries is indicative of its engagement at review stage with attempts to clarify matters and help establish that reasonable efforts had been made to identify the subject records.
I am satisfied that during the course of this review the Department undertook fresh and comprehensive searches and released additional records as summarised above.
Having regard to the above, I find that the Department has taken all reasonable steps to search for records held and that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department.
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.
Elizabeth Dolan
Senior Investigator