Decision
Ms Z and Kerry County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152220-J8F5N6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152220-J8F5N6
Published on
3 January 2025
On 1 July 2024, the applicant submitted a request to the Council for records relating to “the internal deliberations which informed the planning decision on [a named planning application], and in particular, the evidence-base for the assertion that the proposed development would ‘depreciate the value of residential development in the vicinity’.” On the same day, the Council emailed the applicant to inform her that planning records are publicly available on the Council’s website. It said all records in relation to the planning application, including the Planner’s report, were available to view online. On 24 July 2024, the applicant sought an internal review of what she deemed to be the Council’s decision on her request. She suggested that further internal correspondence should exist that might not have been published, such as internal correspondence which might have contributed to the Planner’s report, records of advice provided by another Department within the Council, records relating to the internal approval process or notification of planning decision to the Council members, and records of the evidence used to conclude that the proposed development would depreciate the value of residential development in the vicinity.
On 22 August 2024, the Council issued its decision on the request, in which it refused the request under sections 15(1)(d) and 15(1)(a) of the FOI Act. It said all records in relation to the application, including the planner’s report, were available to view online. It said the Planner’s report sets out the basis for their recommendation and reasoning for the refusal. It said there are no other records in relation to internal deliberations as it is the Planner’s report that is considered. It also said that the Planning Department requested reports from the Killarney Roads Office and the National Road Design Office but neither submitted reports.
On the same day, the applicant emailed the Council to clarify whether its original decision had been issued on 1 July 2024 or 22 August 2024. In response, the Council clarified that the correspondence issued on 1 July 2024 was not the original decision, and that after receiving the applicant’s request to appeal on 24 July 2024, it had processed her request under the FOI Act, and as such, its original decision had issued on 22 August 2024. In light of this, the applicant applied for an internal review of the Council’s decision. She reiterated the points made in her correspondence of 24 July 2024, and also stated that since then, she had been advised that whilst the Planner’s report had been signed by one planner, the site visit had been attended by a number of Council officials, and had included engagement with residents of a named estate. She said she expected records to exist in relation to such a meeting.
On 23 September 2024, the applicant applied to this Office for a review of the Council’s deemed refusal of her request as she did not receive an internal review decision within the required time-frame. On the same day, the Council issued its internal review decision, in which it affirmed its refusal of the request. It said that the Planning Department had confirmed that there was no record of engagement between planning officials and residents of the named estate, and as such, its position was that no further records existed beyond those which were publicly available.
On 24 September 2024, the applicant sought a review by this Office of the Council’s decision. She said she believed records of the type relating to the process whereby the final decision is made (the planner’s report making a recommendation for decision by the Chief Executive) would exist. She said she was also interested in the evidence base which informed the statement made in the Planner’s report on the negative impact the development would have on house prices.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found. While the Investigating Officer invited the applicant to make submissions on the matter, no further response has been received to date. Accordingly, 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 Council during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing, under sections 15(1)(d) and 15(1)(a) of the FOI Act, the applicant’s request for records relating to the internal deliberations which informed the planning decision on a named planning application, and in particular, the evidence-base for the assertion that the proposed development would depreciate the value of residential development in the vicinity.
15(1)(d)- information in the public domain
Section 15(1)(d) provides that an FOI body may refuse to grant a request where the information sought is already in the public domain. In its submissions to this Office, the Council said the planning application file in question is available online to view. It is apparent that the applicant does not dispute that records relating to the planning application are available to view online. Rather, her concern is that other relevant records should exist that have not been made available online. For the avoidance of doubt, I find that Council was justified in refusing access, under section 15(1)(d) of the Act, to those records relating to the planning application that are available online.
Section 15(1)(a)- adequacy of searches
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 also 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.
The Council said that section 38 of the Planning and Development Act 2000, and specifically the Planning and Development (Section 38) Regulations 2020, place significant obligations and responsibilities on Planning Authorities in relation to the publishing of planning files. It said that the 2020 Regulations provide that all planning authorities are obliged to publish planning application documentation on their websites within five workings days of receipt of documents. It said that these regulations ensure that planning application documentation is easily accessible on-line for members of the public. It also said that this is to facilitate transparency in relation to the planning process, and to facilitate further public participation in the planning decision-making processes. It said that the online access provides for alternatives to inspection of files at the public counter.
The Council said the planning application file which is the subject of the applicant’s request was submitted online via the new National Online Portal. It said that when applications are submitted online through this new portal there are very few, if any, paper records created. It said the protocol is to create and save all documents within its Central Record Management (CRM) system, and once created, documents are automatically uploaded to the online planning file. It said that in this case, the only paper records held were submissions received from third parties and it said these were scanned, saved to the CRM, and filed, as well as a signed copy of the Manager’s Order refusing the permission which was also scanned and uploaded on the online system. As such, the Council stated that its position was that all records relating to the named planning application cited by the applicant were available to view online.
The Council added that searches were conducted of files within the Planning Department, which it said involved staff checking files where paper copies are stored, and a check of similar numbered planning applications. It said this check included searches for files with the applicant’s name, manual files with similar numbers, online files with similar numbers, and searches by applicant name for online files and by name and address on the internal planning system. It said that when conducting searches, engagement took place with the relevant Area Planner and the Municipal District (MD) Engineer who both confirmed that no further records existed. The Council stated that as this was a minor planning application, typically only a small amount of records would exist in such a case.
In relation to whether all relevant individuals were consulted during the searches conducted for records within the scope of the applicant’s request, the Council said that all planning staff members involved with the processing and decision making in respect of the planning application in question were consulted and their records searched. It said the CRM was also checked for activity on the application, and all staff that accessed the application were identified, consulted with and requested to check their records, including their diaries. The Council said this involved a check of their emails by planning register number, and by the applicant’s name and address. It said the Area Planner had one record, an email notification, which was the original file referral to her. It said staff that processed the third party submissions had records of same that were submitted by email or by post. It said the MD Engineer confirmed no submission in relation to this application was issued by the Municipal District. It said all records that were identified following these searches were available on file.
The Council said a designated staff member in the Planning Office confirmed that he had conducted a review of the online application. It said that the staff member checked the file where the submissions are stored and also engaged with the staff that record and process submissions, and it said he found no evidence of any additional documents that were not already available to the public to view online. It said the staff member spoke with the relevant Area Planner at the time the applicant’s FOI request was being processed, and the Area Planner confirmed that she held no additional records beyond those which were available to view online. In relation to the applicant’s assertion that the site visit was attended by a number of KCC officials and included engagement with residents of a named estate, the Council said that the Council staff member re-engaged with the Area Planner when the Council received a request for submissions from this Office, and that the Area Planner stated that she had checked her diary for the date of the site inspection, 14 May 2024, and confirmed that she did not meet with or talk to any person during the course of her site inspection. The Area Planner stated that if she had met with or spoken to anyone during her site inspection this would have been recorded in her diary and included in the planning report. The Council said the Area Planner confirmed that she can clearly remember the day of the site visit in question, and stated that she is sure no further records exist.
In relation to the request sent to other areas of the Council for advice mentioned by the applicant, the Council said referrals were created and sent automatically within the CRM to the Area Planner, S.E.E. Operations, Health & Safety for the Killarney Municipal District, and S.E. Kerry National Road Design Office. It said it did not receive a response from either Department, and it said this would not be out of the ordinary as the application was minor in nature and was within a well-established housing estate within the curtilage of the town. The Council also said that the Municipal District Engineer also confirmed that while a request for submission was received by the Municipal District, a submission was not made from the Municipal District in relation to the planning application. The Council said this would not be unusual in cases such as this.
In relation to whether any records exist which might show the evidence-base for the assertion that the proposed development would ‘depreciate the value of residential development in the vicinity’, the Council said no further records exist. It said at there are no other such records apart from what is contained in the Planner’s report and available online. It said that the Planner’s report is based on the Planner’s experience and professional qualifications in this field. It said the area that was the subject of the planning application was a designated green/amenity in the original permission for the housing estate, which it said is there for the amenity and enjoyment of all residents and those that visit the estate. It said the proposed removal of this green/ amenity area would naturally reduce the benefits of the residential amenity provided by the existing green area and that the Planner stated that this “would impact negatively on the residential amenities of the residents of [named estate] if the use of this green area was removed”. The Council said that a negative impact on residential amenities would naturally affect the value of any property benefitting from the amenities. The Council said the Planner noted that “the removal of the green area would impact negatively on the visual aesthetic of the entrance to [named estate] housing development by the removal of the majority of the trees and grass”.
The Council added that, in relation to eight of the nine submissions received in respect of the application, including one from the residents’ association, issues were raised around the loss of the green area, the trees and shrubs planted there, visual impact etc. all of which would detract from the residential amenities. The Council said that full copies of these third party submissions are available to view online and are summarised in the Planner’s report.
Finally, in relation to the applicant’s assertion that no correspondence relating to the internal approval process or notification of planning decision to the members of the Council etc. was published online, the Council said that the internal approval process is based on the Planner producing his/her report containing their recommendation and the basis for the same. It said this is then reviewed by their line manager, and in this case the Planner’s recommendation was accepted and the line manager signed off the recommendation. The Council said the Planner’s report online includes approval by S.E.E. Planning. It said that a Manager’s Order refusing the permission was then prepared and signed by the Delegated Executive. The Council said that this is the internal approval process. Additionally, the Council also said that elected members of the Council are only directly notified of decisions in relation to applications where they make written representations. It said that in this case, no such representations were received. The Council said that the elected members receive weekly lists of all planning applications received, planning applications granted, and planning applications refused within the relevant week. It said these lists are also available online to the public.
Analysis
For section 15(1)(a) to apply in any case, the FOI body must have taken all reasonable steps to ascertain the whereabouts of the records sought. It is 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. 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. We do 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.
The question I must consider in this case is whether the Council has taken all reasonable steps to ascertain the whereabouts of the additional records sought by the applicant, apart from those that are publicly available. Having regard to;
• the Council’s description of the searches actually undertaken,
• its explanation of its records management practices in respect of records relating to planning applications,
• its explanation as to why it considers that no further relevant records exist, and
• the absence of any evidence to suggest that further relevant searches might be warranted,
I am satisfied that it has. Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to the internal deliberations which informed the planning decision on a named planning application other than those publicly available, 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 sections 15(1)(a) and 15(1)(d) 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.
Stephen Rafferty
Senior Investigator