Decision
Ms X and Westmeath County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-144030-R6G8S2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144030-R6G8S2
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records containing information concerning a Second Public Consultation Report related to the Galway to Athlone Cycleway Project on the ground that no records that contain the information sought exist
3 September 2024
This review is concerned with a Second Public Consultation Report related to the Galway to Athlone Cycleway Project that was prepared in 2021 by a named consultant firm (hereafter the Consultants).
In an email dated 10 March 2023, the applicant submitted a list of nine different sets of questions and requests for information “Under GDPR and FOI legislation” in connection with the consultation and report in question.
1. Of the 1,042 email responses and 9,796 online form responses, how many responses came from specific dedicated media campaigns, like the [specified group’s] Facebook page and are exactly the same? (i.e. contain the exact same text) For reference, [the Council] can refer to the SAR released to [the applicant] in 2022, which contained [her] own [specified group] submission.
2. How was the breakdown of categories in the 'Comments on Corridor Options' decided upon? Why are there both routes and individual towns listed?
3. What weight was given to community organisations and local interest groups submissions versus individual submissions?
4. Provide definitions of 'Positive', 'Negative' and 'Neutral/Didn't Indicate Preference' categories.
5. Outline the process for dealing with both positive and negative comments within one submission and how a submission like that was categorised. State how many of these submissions were received if not included in the 3 above categories.
6. On the feedback forms, what guidelines were given to respondents with regards to the question about owning property within or adjacent to the route corridor options? Define 'adjacent'. What was 'property' defined as?
7. Of the 1,896 responses received regarding the Corridor 5 option and the 89 submissions for [named location], provide a breakdown in terms of percentages of positive, negative and neutral submissions. Also provide a breakdown on whether or not these respondents owned property within or adjacent to the corridor.
8. Since March 1st 2021, how many submissions have been received by the Project Office and all relevant County Councils involved in the project? What is the breakdown in terms of route corridors in those submissions? What is the breakdown of the categories, i.e. positive, negative or neutral, in those submissions? How many of those submissions are from land or homeowners in the corridor 5 area, including both the original corridor and any other alternatives being considered?
9. Page 40 of this report states that 'stakeholders suggested the route (route 5) is the least imposing on landowners' and suggested that farmers in the area would be more amenable to tourism and sustainable developments - state who these stakeholders are and how many of them expressed this opinion.
On 28 March 2023, the Council informed the applicant that if she wished to make a request under the FOI Act, she should complete an enclosed FOI Request form and indicate the precise records sought. It explained that a request is not valid if it is not possible, by the taking of reasonable steps, to identify the records concerned from the information supplied.
On 5 April 2023, the applicant submitted a completed form. In response, the Council said that apart from a minor amendment, the applicant had not provided a refinement of the nine items in order that the specific records could be identified. It said that without further information, it may be difficult to identify the records sought by the taking of reasonable steps and it asked the applicant to take a further look at the nine items in order to assist it in establishing the records sought.
In her subsequent response, the applicant said she could not be more specific. She said the information requested surrounded the data collected as part of the Second Public Consultation Report. She said that points 1 to 7 and point 9 refer to the breakdown of that data and definitions for same, and that point 8 referred to data collected since 1 March 2021, and the analysis of same using the parameters used as part of the Second Public Consultation Report.
In a decision dated 21 April 2023, the Council refused the request, citing various sections of the Act in support of its refusal, including sections 15(1)(c), 27(12)(a)(i), and 15(1)(a). On 3 May 2023, the applicant sought an internal review of that decision. In her application for internal review, she said it would be a well-established practice for any data analysis conducted on a data set that rules and procedures regarding the analysis of same would be outlined at the start of such an undertaking to give guidance to any person involved in the analysis process. She said the information requested pertains to said analysis and categorisation. She said she requested “all documentation in paper or electronic form that issued guidance and/or advice to the individuals compiling these statistics in relation to “a number of specified matters. She also said that if no record exists, the information should be easily retrievable from the relevant data.
In correspondence with this Office during the course of this review, the Council said it contacted the Consultants regarding the FOI request following receipt of the application for internal review, which resulted in the Consultants directly providing the answers to some of the applicant’s questions (parts 2 to 6).
On 26 May 2023, the Council issued its internal review decision. While it purported to affirm the original decision, it went on to say that it had decided to part-grant the request. It provided a schedule which contained details of the responses provided by the Consultants in respect of parts 2 to 6 of the original request. It affirmed its refusal of parts 1, 7 and 9 under section 15(1)(c) of the FOI Act and its refusal of part 8 under section 15(1)(a). On 22 November 2023, the applicant applied to this Office for a review of the Council’s decision on the ground that she had not received all relevant documentation.
During the course of the review, the Council informed this Office that it does not hold records containing the information sought by the applicant in parts 1 to 9 of her FOI request, other than the letter containing responses to the applicant’s questions that was received from the Consultants. The Council’s position is that no records that contain the information sought exist and that it is not required to create a record pursuant to section 17(4) of the Act in this case. This is, in essence, a claim for refusal of the request under section 15(1)(a) of the Act. The Investigating Officer informed the applicant of the details of the Council’s submissions and offered her an opportunity to make further submissions. The applicant subsequently made submissions. On foot of this, the Investigating Officer sought and received further clarifications from the Council.
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.
During the course of the review, and following correspondence with this Office, the Council provided the applicant with the details sought at the first part of part seven of the request, which it extracted from a spreadsheet that had been compiled by the Consultants recording details of the approximate 11,500 submissions that had been received on foot of the consultation exercise. Accordingly, I have excluded that part of the request from the scope of this review.
This review is therefore solely concerned with whether the Council was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, the remainder of the applicant’s request on the ground that no records containing the information exist or can be found.
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 his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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.
It is relevant to note here that section 11 of the FOI Act provides for a right to access to records held by an FOI body. Under section 12(1), a person who wishes to exercise the right of access must make a request for access to the record concerned and the request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Accordingly, in considering whether the Council was justified in refusing the request under section 15(1)(a), I have had regard to the fact that the request must be treated as a request for records held by the Council that contain the information sought at parts 1 to 9 of the applicant’s request.
In considering whether the Council holds relevant records, I have also had regard to section 17(4) of the Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. However, if the body does not hold a record containing the information sought and cannot search for and extract the information from electronically held records by taking reasonable steps, then that is the end of the matter.
As noted above, the applicant and the Council made submissions to this Office in the course of the review. While I do not propose to repeat details of those submissions in full here, I can confirm that I have had full regard to them for the purposes of this review.
Council’s Submissions
The Council said it engaged the Consultants in January 2020 to carry out all services necessary for the management and delivery of Transport Infrastructure Ireland’s Project
Management Guidelines for Phases 0-4 on the Galway to Athlone Castle National Cycleway:
Phase 0 - Scope and Pre-Appraisal
Phase 1 - Concept and Feasibility
Phase 2 - Option Selection
Phase 3 - Design and Environmental Evaluation
Phase 4 – Statutory Processes
It said that as part of the Phase 2 Option Selection, a Public Consultation No 2 was held between the 31 January 2021 and 1 March 2021. It said the Consultants produced a report on Public Consultation No 2 and this report is available on the project website. It said feedback consisting of 9786 online questionnaires, 1042 emails responses and 649 posted responses were received by the project team during the five-week consultation period in early 2021. It said the Consultants put all these responses into an Excel spreadsheet. It said the consultancy services contract with the Consultants was terminated in December 2023
during Phase 3 and as part of the handover, the spreadsheet containing the submissions was given to the Council and is stored on the Council’s server. It said that while it has a copy of the spreadsheet containing these submissions, it does not hold any records containing the specific information sought by the applicant in parts 1,7,8 and 9 of her request. Regarding parts 1, 7 and 9, the Council said that neither the Consultants nor the Council conducted searches for relevant records. It said that this was due to the Consultants’ position that the data analysis presented in the report is how the data was processed.
The Council further said that the only record held in relation to parts 2 to 6 of the request is the response it received from the Consultants. It said it understands that the Consultants did not use any procedures manual or standardised guidance document when providing the information in relation to parts 2 to 6. It said it does not have any records containing the specific information sought by the applicant in relation to parts 2 to 6. It said the contract with the Consultants did not have a document that identified how to conduct and/or analyse the public consultation submissions. It said that a Brief of Services from 2019 outlines the requirements for the Phase 2 Public Consultation, which states that ‘[t]he Consultant shall log all submissions in the interaction database and shall prepare consultation reports, which addresses the submissions in detail and summarises the feedback received.’ The Council said that there were no terms of reference agreed with the Consultants or included in the tender documents in relation to the consultation process or conducting and analysing the submissions received from the Second Public Consultation.
The Council said that it did not raise the issue of guidance documents at any point in its communications with the Consultants regarding the FOI request. It said that there were no prior dealings between the Consultants and the Council where guidance documents were referred to. It said that its view was that the responses provided by the Consultants were based on the submissions received during the Second Public Consultation held between January 2021 and March 2021, and the submissions and report were the only records that existed.
In relation to part 8 of the request, the Council said there is no compiled list of submissions received after 1 March 2021 by the Project Office and all relevant County Councils involved in the project. It said that the Third Public Consultation was held between 8 December 2021 and 31 January 2022, which is available on the Project website and section 5 deals with feedback received.
On the matter of whether the Council might be in a position to electronically search for and extract the records to which the request relates pursuant to section 17(4), the Council said that the specific analysis requested would require a significant effort to complete on all received submissions. It said that there is no system for organising the information in such a way that a record fulfilling parts 1, 7 and 9 of the applicant’s request could be created. It said that a new record could only be created by going through the individual submissions received. The Council said that it did not consider this manual extraction necessary to create a record to be ‘reasonable steps’ as described in section 17(4) of the FOI Act.
Regarding part 6 of the request, the Council said that it had not defined 'adjacent' or 'within', but rather this was for the individual or group making the submission to determine themselves by ticking either 'Yes' or 'No' on the questionnaire. It said in its initial submissions that in order to create a record fulfilling the remainder of part 7, each of the 1,985 submission forms would have to be examined, and then it would have to separately calculate the percentages of respondents who owned property within/adjacent to the corridor, and respondents who did not. It said that as the Excel spreadsheet cannot be manipulated to create such a record as there is no column indicating this information, fulfilling the remainder of part 7 of the applicant’s request would require steps that go beyond the requirements of section 17(4) of the FOI Act.
Applicant’s Submissions
As noted above, the applicant was invited to make submissions in response to details of the searches conducted by the Council as well as its reasons for concluding no records existed, outside of the table partially fulfilling part 7 of her request. In her submissions to this Office, the applicant said that the published report does not include any of the submissions or direct quotes from those submissions. She said that it merely contains generalisations and, of most concern and the main reason for her FOI request in the first place, the terms 'some/a few/many/etc.' were used without any evidence of actual responses or quantities.
In relation to the response given in respect of part 4 of her request, the applicant questioned how the Council could provide the definitions provided in its internal review decision if its position now is that no formal definitions or guidance were used in the analysis of the data. She also queried, in relation to part 9 of her request, how a report could be published stating stakeholders made comments on a particular route, when the Council is now unable to demonstrate the evidence behind that statement. She said the Council cannot or will not provide any evidence to support the published report and therefore the route selection. She said she knows this may fall outside the remit of FOI, but suggested that “surely there is an evident issue here for a County Council in the governance of data and its analysis?”.
Finally, the applicant asked if this Office could now direct the Council to release the Excel spreadsheet to her under the FOI Act.
My Analysis
I have considered the details of the submissions made by both parties and the specific contents of the various parts of the applicant’s request. It seems to me that the various parts of the request can be categorised as follows:
1. Parts 1, 7 and 9 seek information that require an analysis of consultation responses
2. Parts 2 to 6 seek information regarding the procedures followed in the conduct of the consultation and the analysis of the consultation responses, and
3. Part 8 seeks information that is not included in the consultation responses or the associated spreadsheet
In relation to parts 1 and 9, I am satisfied that the Council does not hold a record that contains the information sought and that it can only be compiled by conducting, in part at least, a manual analysis of the consultation responses received. Section 17(4) does not require such a manual analysis. As I have outlined above, while the section requires the body to take reasonable steps to search for and extract the records where the information is held electronically, reasonable steps are defined in the section as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. This does not include manual analysis of electronic data to compile the information sought.
In relation to part 7, however, having examined the headings contained in the Excel spreadsheet, this Office further queried if it was possible for the Council to extract the information sought at the remainder of part 7 of the applicant’s request, namely a breakdown on whether or not the 1,896 responses received regarding the Corridor 5 option and the 89 submissions for [named location] owned property within or adjacent to the corridor. In response, the Council provided a table containing the breakdown sought. I can only assume that it was, therefore, in a position to extract the information in question by taking reasonable steps. In the circumstances, I see no reason why the Council cannot provide the information in question to the applicant.
In relation to parts 2 to 6, I accept the Council’s submission that no records exist containing details of the procedures the Consultants followed in relation to the conduct of the consultation and the analysis of the consultation responses. I accept that the Council provided the applicant with details of the responses the Consultants provided in respect of the questions asked. However, having regard to the nature of the information sought, it is not apparent to me that the Consultants would require procedural documents to provide those responses, nor was it obliged, pursuant to the provisions of the FOI Act, to provide those responses if they were not contained within records held.
I note the applicant’s concern as to how the Council could provide the definitions provided in response to part 4 of her request if its position now is that no formal definitions or guidance were used in the analysis of the data. The definitions sought were in respect of the terms 'Positive', 'Negative' and 'Neutral/Didn't Indicate Preference'. The response prepared by the Consultants which was provided to the applicant with the Council’s internal review decision is, in my view, self-evident and would not require a procedural guidance document to define those terms. For example, the Consultants indicated that a Positive submission was “one where the person/group expressed a positive preference to a route”.
On the matter of the applicant’s concerns that the Council’s refusal to provide evidence to support the published report and therefore the route selection is an evident issue for a County Council in the governance of data and its analysis, it is important to note that the remit of this Office is confined to a review of the decision taken by the Council on the request.
In relation to Part 8 of the request, I accept the Council’s submission that it holds no records containing the information sought and the applicant has presented no evidence to suggest otherwise.
In conclusion, therefore, I am satisfied that the Council has justified its refusal of the applicant’s request, other than the remainder of part 7, under section 15(1)(a) of the FOI Act on the ground that no records exist containing the information sought. As noted above, I am satisfied that the Council holds the information relevant to the remainder of part 7 of the applicant’s request and I direct the release of this information to the applicant.
I would add, for the sake of completeness, that it is not open to this Office to direct the Council to release the relevant Excel spreadsheet in circumstances where the applicant’s request did not include a request for that record. While I express no view in this decision on the applicant’s entitlement to receive a copy of same, it is open to the applicant to submit a fresh request to the Council for access to that record.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in refusing, under section 15(1)(a) of the FOI Act, parts 1¬‒6, part 8, and part 9 of the applicant’s request for information concerning the Second Public Consultation Report related to the Galway to Athlone Cycleway Project on the ground that no records exist that contain the information sought. I annul its refusal of the remainder of part 7 of the applicant’s request and I direct the release of the information sought.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator