Decision
Mr. X & Cork City Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-152078-Z9F9K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152078-Z9F9K7
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant’s participation in a Strategic Land Reserve (SLR) Process carried out by Cork County Council in 2018 on the ground that the records sought cannot be found after all reasonable steps have been taken to locate them
9 September 2025
This case has its background in a previous decision by this Office in case OIC-144020, wherein the Senior Investigator annulled and remitted for a fresh decision the Council’s decision to refuse the applicant’s request for records relating to his participation in a Strategic Land Reserve (SLR) Process in 2018 that was carried out by Cork County Council. In 2018, Cork County Council wrote to multiple land owners with an invitation to participate in a Strategic Land Reserve (SLR) Process carried out by the County Council. In 2018, the applicant emailed Cork County Council, indicating his intention to participate in this SLR Process in relation to a specific parcel of land involved in the SLR Process. Cork County Council emailed the applicant acknowledging receipt of his submissions. As I understand it, the lands that are the subject of the applicant’s request were subsequently transferred from Cork County Council’s jurisdiction to Cork City Council’s jurisdiction in 2019 as part of a Cork City Boundary Extension.
In a request dated 29 June 2023, the applicant sought all personal records in respect of his participation in the SLR process between March 2018 and October 2018 when the SLR Report and Recommendations were presented to the Elected Members of the Development Committee. The applicant stated that these records included the documentation in respect of the legality, or otherwise, of his participation in the SLR process and any relevant third party submissions taken into account by Cork County Council staff in those deliberations during the above referenced time period.
In case OIC-144020, this Office annulled the Council’s decision to refuse the request under section 15(1)(c) of the FOI Act on the ground that it had not first offered assistance to the applicant to refine his request pursuant to section 15(4) of the Act. Moreover, we annulled the Council’s decision to refuse the request under section 15(1)(a) of the Act as during the course of the review the Council located 11 boxes of records that it said may contain files relevant to the SLR process.
On 21 May 2024, the Council wrote to the applicant and said that the request as it stands is refused under section 15(1)(c) of the FOI Act on the basis that processing the request would lead to a substantial and unreasonable interference with its day to day work and asked him to refine his request. The letter advised the applicant that he was entitled to appeal to the Council for a review of the matter. On 13 June 2024, the applicant requested an internal review by the Council and said that while he found the options set out in the Council’s letter confusing, he set out his grounds for seeking an internal review. The applicant said the SLR review considered a number of large land parcels located in 12 “SLR ” locations around the city. He said he assumed the records assembled were collated in boxes or files that referred to the particular SLR number, i.e. with individual files associated with SLR numbers 1 to 12. He said that in an effort to assist the Council, he only has an interest in records in respect of one specific SLR location. He further noted that he was only seeking records with any reference made to him individually or in association with specified lands.
On 17 July 2024, the Council issued its internal review decision wherein it refused the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. The Council said it identified 15 boxes of files that were deemed to be the most likely to contain SLR records. It said that these boxes were retrieved from its off-site storage and were searched, and that none contained SLR files. It said a member of staff who worked on the SLR process in Cork County Council, who had subsequently transferred to the City Council, was consulted and located records regarding the process, but none were located that come within the scope of the applicant’s request. On 17 September 2024, the applicant sought a review by this Office of the Council’s decision. The applicant outlined his interactions with Cork County Council in regard to the SLR process and questioned the basis for the refusal of his request.
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 records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, however the applicant’s representative informed this Office that the applicant had no further submissions to make beyond those which he had made earlier in the review.
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 between the applicant and the Council as outlined above and to the communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
The review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to records relating to the applicant’s participation in the SLR process between March 2018 and October 2018, on the basis that the records sought cannot be found.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This means we have no role in examining actions taken by the Council in relation to the SLR process, or indeed the record management practices surrounding the SLR process or the subsequent transfer of files between the Councils.
Second, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
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 locate them have been taken. The role of this Office in such cases is to review the decision of the FOI body and decide whether that decision was justified. This means that we must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at its 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.
The Council provided this Office with details of the searches it undertook to locate relevant records and its reasons for concluding that no records could be found, 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 the submissions received from both the applicant and the Council for the purposes of this review.
In its submissions to this Office, Cork City Council (the Council) stated that the SLR process was a non-statutory process ran by Cork County Council. It said that Cork County Council invited and received submissions on the SLR process. The Council stated that the boundary extension of Cork City took place in May 2019, outlining that it was a vast undertaking with a large amount of work and preparation involved. The Council stated that dedicated sections were set up in both local authorities to oversee and manage the process. It stated that the 2019 boundary extension added 85,000 new residents to the city. Additionally, it stated that over 400 public services transferred from Cork County Council to Cork City Council. As well as this, the Council stated this boundary transfer included the transfer of 550 km of roads, 990 social housing homes, nine cemeteries, and three libraries. The Council stated it provided this background information to illustrate the vast nature of the boundary transfer process, and to highlight the enormous number of files which would have been transferred from Cork County Council to Cork City Council during this process.
In relation to the searches carried out for records relating to the applicant’s request, the Council stated that detailed physical and electronic searches were carried out in an effort to locate any records falling within the scope of the applicant’s request. In its submissions to this Office, the Council stated that a physical search for records falling within the scope of the applicant’s request was carried out in the relevant directorates which were identified as most likely to hold relevant records following the transfer of files from Cork County Council to the Council. The Council stated that a specific focus was placed on files it received during the boundary extension process, a process which it stated was finalised in May 2019. The Council stated that these searches returned some records relating to the SLR process generally, but none which related to the requester, and therefore none falling within the scope of his request. The Council also stated that it conducted searches at its off-site storage facility. It stated that its off-site storage facility has a detailed and up-to-date records management system, and files can be searched for using an excel list which details all files held at the facility. The Council stated that in theory, for example, if the FOI Office were to send 10 boxes of records relating to FOI requests 1-10 to its storage facility, these boxes would be clearly labelled by the Council as FOI 1 through 10 and would be recorded on the excel list as such. However, the Council stated that when Cork County Council transferred files to the Council during the boundary transfer process Cork County Council did not provide the City Council with a detailed transfer cataloguing system. As such, the Council stated that it was not provided with, and therefore does not currently have, a cataloguing system detailed enough to allow it to identify the exact nature and content of the records which were transferred during the boundary transfer process.
Nevertheless, the Council stated that it carried out searches at its off-site storage facility using key words it deemed relevant to the applicant’s request, such as variations of his name, Strategic Land Reserve- all years, SLR, the name of the land parcel specified in his request, SLR report- all variations, handover files, County Council handover files, boundary transfer etc. The Council stated that it focused on searching for records which were received during the boundary transfer process, as well as attempting to locate any records which were categorised as SLR files. The Council stated that searches at its off-site storage facility only returned high level results, which it said initially resulted in 157 boxes being identified that were labelled as “County ”, “estate files ”, and “transition files .” Of those 157 boxes identified at its off-site storage facility, the Council stated 11 boxes of records were initially identified that may have been relevant, and after further investigation 15 boxes total were identified, titled ‘County files 2018’, which were deemed most likely to hold relevant records. The Council stated that it was deemed these files were most likely to hold records falling within the scope of the applicant’s request due to the fact the SLR process took place in 2018 and was ran by Cork County Council. As such the Council stated that these 15 boxes categorised as ‘County files 2018 ’ were requested from its off-site storage and were searched. The Council stated that the vast majority of the records held in these files had no relation to the SLR process, but that the small number of records located which did relate to the SLR process did not fall within the scope of the applicant’s request. The Council also stated that during its physical searches, one box of records relating to the SLR process was located, however, it stated that this box was searched and no records falling within the scope of the applicant’s request were identified. The Council also said that there were substantial retrieval costs for these 15 boxes of records in addition to staff search time, costs which it said it did not pass on to the applicant.
Furthermore, in relation to the searches carried out for hardcopy records falling within the scope of the applicant’s request, the Council stated that a Cork City Council employee who was a former Cork County Council staff member at the time of the SLR process was contacted, and his records were searched. The Council said that this former Cork County Council staff member had two level-arch files which were searched, and that while these searches returned some records in relation to the SLR process, no records were identified as falling within the scope of the applicant’s request. The Council said that this former Cork County Council staff member indicated that he recalled corresponding with the applicant during the SLR process, however, he stated that he lost access to his Cork County Council email address upon transferring to Cork City Council, and as such he had no way to search his email account for any records which may fall within the scope of the applicant’s request. The Council said that, in an effort to conduct as thorough searches as possible it contacted Cork County Council’s FOI office and requested that Cork County Council conduct searches of this former Cork County Council staff member’s email account for records falling within the scope of the applicant’s request. The Council stated that Cork County Council responded to this request, stating that initial mail meter searches of the former Cork County Council staff member’s email address, using key word searches of the applicant’s name and the dates between 16 March 2018 and 19 October 2018, returned some emails which may fall within the scope of the applicant’s request. The Council said that Cork County Council went on to state that these emails may or may not be relevant to the applicant’s current request, and it said that it would have to review the emails in full, and redact and/or release the records where appropriate, if the relevant directorate’s decision maker deemed this was necessary. Cork County Council stated to the Council that, if it would like these steps to be carried out, it would appreciate if the applicant made a separate FOI request to Cork County Council for records relating to him and the SLR process potentially held in the former County Council staff member’s email account. Cork County Council stated that this would allow for searches to be conducted, and the correct FOI procedures to be followed. This Office recently received, and is carrying out a separate review, of an application from the applicant for review of a decision by Cork County Council on a related request he made to that Council.
In relation to the physical searches which were carried out, the Council also stated that it had contacted Cork County Council- as the authority who was the original recipient of records relating to the SLR process- to clarify the exact nature, number, and type of records which were transferred during the boundary extension process. The Council stated that Cork County Council had advised it that all files relevant to the SLR process were transferred to Cork City Council during the boundary extension process. In its submissions to this Office, the Council reiterated that it did not receive a detailed schedule of records from Cork County Council when files were transferred, and as such it was not able to state categorically whether all files relating to the SLR process were in fact transferred. The Council stated that, in the absence of a detailed schedule of the records transferred, all the Council could do was ensure it conducted searches in all locations likely to hold records falling within the scope of the applicant’s request. To this end, the Council stated that when searching for records falling within the scope of the applicant’s request, it also conducted electronic searches on all files held in its boundary transfer folder. The Council stated that its ICT Project Leader had provided the staff conducting searches with a hyperlink to a shared folder which she advised held all electronic files transferred during the boundary extension. The Council stated that this shared boundary folder, along with an attached zip-file, were searched and no records were returned relating to the applicant’s request.
In relation to the electronic searches carried out, the Council also stated that a full search of all its servers and databases was conducted using a variety of search terms it deemed relevant to the applicant’s request, such as variations of the applicant’s name, Strategic Land Reserve- all years, SLR, the name of the land parcel specified in his request, SLR report- all variations, handover files, County Council handover files, boundary transfer etc. The Council stated that having carried out these key word searches, no records were located which fell within the scope of the applicant’s request. The Council also stated that staff who were involved in the SLR process when employees of Cork County Council, and who are now Cork City Council employees, were asked to search for records falling within the scope of the request. The Council stated that whilst some records were found relating to the SLR process more broadly, no records were located which fell within the scope of the applicant’s FOI request. Furthermore, the Council also said that staff within the Council who were part of the transition team tasked with the transfer of files from Cork County Council to Cork City Council were consulted and asked to search for records falling within the scope of the request. The Council stated that these searches also yielded no results falling within the scope of the applicant’s request.
In summary, the Council said it believes that records do/did exist as the applicant did communicate with Cork County Council on the SLR process and staff involved recall some communications. However, the Council said it cannot say with any certainty whether records of these communications were retained by Cork County Council, given that the SLR process was a non-statutory process, and if such records were retained, it cannot state with certainty whether those records were transferred from Cork County Council to Cork City Council during the boundary extension process. The Council stated that, given the scale and volume of records transferred over a short period of time during the boundary extension process from Cork County Council to Cork City Council, and without a detailed schedule of records transferred to allow for proper identification of the content of every file transferred, it believes it would be completely unreasonable to expect the Council to search all files it received during the boundary transfer process. The Council stated that it believes it has taken all reasonable steps to search for records falling within the scope of the applicant’s request, by searching all locations identified as most likely to hold records relating to his request, as well as reaching out to all relevant individuals identified, and also requesting that Cork County Council conduct searches of the abovementioned former County Council staff member’s email address. As such, the Council said that its position is that no records falling within the scope of the applicant’s request can be found after all reasonable steps have been taken to ascertain their whereabouts have been taken.
In his submissions to this Office, the applicant said he believes records should exist relating to his request. The applicant stated in early 2018 his advisors had multiple telephone conversations with Cork County Council staff, during which he said his entitlement to become part of the SLR process was discussed. He stated that, based on these conversations, he was of the understanding that these discussions were had at the highest levels in Cork County Council. The applicant stated that the sole purpose of his FOI request is to obtain any information that might clarify whether the terms of an option to purchase agreement he has regarding a specific land parcel was honoured by all parties. He said the nub of his request is to understand how Cork County Council made a decision to move “unilaterally away” from him and his SLR submission, a decision he said was communicated to him/his advisor during a phone call with a member of staff from Cork County Council on 3 August 2018.
The applicant stated that the main grounds for his appeal centred around the fact that Cork City Council had provided him with various different responses to his FOI request since it was first submitted, including no records exist; records may exist but are held by Cork County Council; request refused under section 15(1)(c) of the Act; 11 boxes of records identified that might contain records and 157 boxes identified at off-site storage (relating to ‘county’, ‘estate files’, and ‘transition files’) of which 15 identified as ‘2018 county files’. Having regard to the above, the applicant stated that he wished for this Office to consider whether Cork City Council has taken all reasonable steps to ascertain the whereabouts of the records. He also asked if a search could be carried out of the remaining 142 box files (157-15) which specifically mention “County”, “estate files” or “transition files” or some other term that may suggest they involve Cork County Council. The applicant also queried if the staff member who worked on the SLR process in Cork County Council, who now works in Cork City Council, could answer questions about the decision taken on his participation in the SLR process.
While the Council initially refused the applicant’s request under section 15(1)(c) of the Act after it was remitted by this Office, this review is concerned solely with whether the Council was justified in subsequently refusing his request under section 15(1)(a) of the Act.
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. 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. 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.
In regard to the applicant’s query about whether a certain staff member can answer questions about decision taken on his participation in the SLR process, it is also important to note that the FOI Act provides for a right of access to records held by FOI bodies. Requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
As noted above, the Council have provided this Office with detailed submissions about the searches it said it has carried out for the records sought by the applicant. I acknowledge the applicant’s frustration about how his request was handled by the Council and it is disappointing that the Council did not deal with the applicant’s request properly in the first instance. It seems to me that the search for records in this case has been hampered by the change in boundaries that led to the transfer of a large number of records from Cork County Council to the City Council. It seems that the unstructured manner in which the files were transferred to the Council made its efforts to search for the records more difficult. Nevertheless, during the course of this review the Council has provided this Office with detailed submissions regarding the searches carried out for the requested records. Having carefully considered the submissions provided by both the applicant and the Council, I am satisfied that it would not be reasonable to expect the Council to undertake a search of the 142 additional boxes suggested by the applicant. I believe the Council’s rationale for limiting its searches to the 15 boxes of files it identified was reasonable in the circumstances. I note that it located records relating to the SLR process in the boxes it searched. However, unfortunately it did not find the records sought by the applicant. The question I must consider in this case is whether the Council has at this stage taken all reasonable steps to locate the whereabouts of the records sought by the applicant. In my view it has. I do not consider it is reasonable to direct the Council to search through an additional 142 boxes of records to see if they might hold the information the applicant is seeking.
As outlined above, 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. I understand the applicant has invested a significant amount of time in this process, and I acknowledge that the Council’s inability to locate relevant records will be frustrating for him. However, given 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 records falling within the scope of the applicant’s request. I find, therefore, that the Council was justified under section 15(1)(a) of the FOI Act in refusing access to the records sought by the applicant on the basis 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