Decision
Mr. X & Galway County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-158694-Y5Y8H3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158694-Y5Y8H3
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to how a certain road was taken into the charge of the Council on the basis that no such records exist or can be found
1 September 2025
The background to this case concerns the status of a particular road and whether it was taken into the charge of the Council. “Taking in charge ” is described on the Council’s website as a formal legal process by which responsibility for certain public areas, structures and services in a private residential development or estate are transferred to, or put in the charge of, a local authority.
In a request dated 7 February 2025, the applicant sought access to all records demonstrating how a specified road was “taking in charge ” by the Council. In a decision dated 2 March 2025, the Council stated the road in question has been a public road under the Council’s authority since the establishment of the state. The Council provided the applicant with a number of records to support this claim, including an extract from minutes of a Council meeting from 1945, an extract from the County Roads list 1963-1968 and a 1996 Roads Schedule.
On 26 March 2025, the applicant requested an internal review of the Council’s decision and disputed the Council’s assertion that the road is a public road. On 2 May 2025, the Council affirmed its original decision and said that all records had been released to the applicant. On 2 May 2025, the applicant applied to this Office for a review of the Council’s decision on the basis that the Council refused to give him the records he requested.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions about the searches it undertook to locate the records sought and its reasons for concluding that no records exist about the “taking in charge” of the road in question. In his response, the applicant stated that a solicitor acting for the Council had stated in court that the relevant road had been taken in charge by the Council in 1967 and he was seeking access to records that confirmed this. The applicant stated that he would seek a court transcript containing this statement. To date, no further submissions have been made to this Office by the applicant.
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 outlined above and to the submissions made by the parties to date. I have decided to conclude this review by way of a formal, binding decision.
While the Council claimed it had granted the applicant’s request, it effectively refused records relating to the “taking in charge ” on the basis that no such records exist or can be found. Accordingly, this review is concerned solely with whether the Council was justified in refusing the applicant’s request under 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 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.
As noted above, the Council provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review. In his initial submissions to this Office, the applicant said he has been informed by a former Council employee who was involved in mapping the roads in the locality that the Council have documents stating that the road in dispute was never taken in charge.
In its submissions to this Office, the Council provided the following background information. It said the "taking a road in charge " refers to the process by which a local authority assumes responsibility for the maintenance and upkeep of roads. To declare a road to be public, the road must be of general public utility and a public right of way must exist over the road. The Road Authority must consider the financial implications of taking on responsibility for an additional public road and must consider any objections or representations made by the public. The making of an Order declaring a road to be a public road and the consideration of objections or representations on such a proposal are functions reserved to the Elected Members. All roads built by the local authority automatically become public roads, there is no need for a formal declaration of “taking in charge ”.
The Council stated that the road in question has been a public road since the founding of the State. It said the Irish Free State took over a network of public roads in 1922 and the construction and maintenance of main roads and county roads became the responsibility of local county councils under the Local Government Act 1925. It said the road in question was previously designated a county road before being renamed as a local road, but no formal records exist demonstrating how the road was taken in charge. It said it released all documents in relation to this specific road being a public road in evidence affidavit to the applicant’s solicitor and said all information has been provided to the applicant in both the FOI response and in the affidavit regarding a legal case on the matter.
The Council provided details of searches carried out by the current and former Roads Department Senior Engineers. The Council said the former Senior Engineer advised that a request for these records had be made previously by the applicant outside of FOI and that he had received records from the Council Archivist in respect of that request. The Council said that, due to its understanding of the historical nature of any records relating to the request, it determined that it was reasonable to direct a search by the Council Archivist. It said all documents identified by the archivist in relation to the road were released previously to the applicant’s solicitor and then again on foot of the request under review here. It said the original Archivist search would have discovered records up to 2020 and any records relating to the request and created since 2020 would have been identified during the searches conducted in response to the recent FOI request of the Roads Section hard drive directory. It said these hard drive searches did not identify any records relating to the request. The Council concluded that it has taken all reasonable steps to locate the whereabouts of records relating to the taking in charge of the road in question and no record exists of the Council having taken the road in charge.
As noted above, the applicant was invited to make submissions in response to the Council’s position and he said a Council solicitor stated in court that the road was taken in charge in 1967. The applicant asked where the documents are to confirm this claim. He said a transcript for this statement will be applied for from the court service.
It 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 public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
It seems the applicant believes records ought to exist that would confirm a statement by the Council’s solicitor that it took the road in charge in 1967. The Council maintains that due to the historical nature of how the road came under the authority of the Council, no formal procedure that would create a record the applicant is seeking would exist. The Council’s position is that the road has been a public road since 1922 and that the record sought by the applicant does not exist and never existed. The question I must consider in this case is whether the Council has taken all reasonable steps to locate the records sought by the applicant. While I have noted the applicant’s submissions, in my view he has not provided any substantive evidence to suggest that further searches by the Council for records relating to the taking in charge are warranted. This Office does 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.
In conclusion, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why records relating to the taking in charge do not exist. In the circumstances, I find that the Council was justified in refusing access to records relating to the taking in charge of the road in question, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the applicant’s request under section 15(1)(a) 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.
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Richard Crowley
Investigator