Decision
Mr X and Louth County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152465-T3H0Y0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152465-T3H0Y0
Published on
11 February 2025
This case has its background in a complaint the applicant made to the Council in June 2022 about a Dangerous Structure/Building. In a request dated 7 August 2024, the applicant sought access to the complete Council file on the specified Dangerous Structure from the date it was first reported on 7 June 2022 to the date of the request. In a decision dated 3 September 2024, the Council part-granted the request. The Council provided the applicant with a schedule of 37 records from the file he referred to in his request. It refused records 1-26 under section 15(1)(i) on the grounds that these records had been released to the applicant in response to a previous FOI request he made in February 2024. The Council released a number of records to the applicant, redacting personal information of third parties from a number of the records under section 37(1) of the FOI Act.
On 4 September 2024, the applicant requested an internal review of the Council’s decision. He stated that the Council did not provide all the information he requested. The applicant said that the correspondence from the 12 months following his initial reporting of the Dangerous Structure is particularly relevant to his complaint appeals. He contended that he had not received a complete copy of the requested file. The applicant did not contest the redactions made by Council’s under section 37(1) of the Act, nor did he dispute the Council’s reliance on section 15(1)(i) in regard to the records it released to him previously. On 27 September 2024, the Council affirmed its original decision.
On 2 October 2024, the applicant applied to this Office for a review of the Council’s decision. The applicant said there are several key records missing from the records released relating to his Dangerous Structure complaint. He said that documents relating to a Forensic Structural Engineer’s Report were missing and no explanation was given. In his submissions to this Office the applicant also claims that numerous emails and documents were missing that were sent to the Council which were clearly marked with the Council’s Dangerous Structure file reference, and that internal emails, file notes and recommendations, etc. are also missing from the file released to him.
During the course of the review, this Office’s Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined its reasons for concluding that no further records exist. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
The Council’s position is that no further relevant records exist or can be found and that all records from the file mentioned by the applicant have been released in response to his request in this case, or in response to his previous FOI request. This is, in essence, a refusal to grant access to further relevant records under sections 15(1)(a) of the Act.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access under section 15(1)(a) of the Act to further records falling within the scope of the applicant’s request.
In his submissions to this Office, the applicant questioned the appropriateness of a certain official dealing with his FOI request who was also involved with the substantive matters that formed the background to his FOI request. It is a matter for the FOI body itself to decide which of its staff members are best placed to process FOI requests. Indeed, it is often the case that FOI bodies appoint decision makers who are most familiar with the subject matter of the request as they are often best placed to make determinations on the release of relevant records. This Office has no role in considering the appropriateness or otherwise of specific decision makers having been involved in the processing of the applicant’s request.
Furthermore, it is important to note that the role of this Office is not to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role is confined to reviewing the decision taken by the FOI body on the applicant’s FOI request for records.
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.
It is important to note that the FOI Act is concerned with the provision of access to records that are actually held by an FOI body. It does not provide for a right of access to a record which ought to exist. Furthermore, the Act does not require FOI bodies to create a record if none exists, apart from a specific requirement to extract records or existing information held on electronic devices.
Submissions from the Council
In its submissions to this Office, the Council provided some background to this case. It said that a Dangerous Structure file was opened in 2022, but no Dangerous Structure notice was issued. The Council said that the Dangerous Structure file that the applicant referred to in this FOI request was first entered on the register on 23 June 2023 and was closed on 31 May 2024 by Chief Executive Order following works being carried out to address the dangerous issue. The Council stated that it has released all relevant records (with personal information redacted) across two FOI requests made by the applicant in February and August 2024. It said the applicant has submitted a complaint to the Ombudsman in respect of the manner in which the case referenced in his request was dealt with by the Council. The Council said that there are some records which were sent to it as part of a separate process to the Dangerous Structure case, i.e. the Ombudsman Complaints Appeal Process and were not part of the assessment of the Dangerous Structure case.
The Council said that all correspondence relating to a case file is inserted on the physical file and or saved on the digital file as is required. It said that no records have been destroyed. It said that in addition to extracting all information from the hard copy case file and soft copy files it is normal practice for the Deputy Decision maker to conduct a search of all/any sections likely to hold data in relation to the FOI request. It stated that the administration of the regulatory framework for Dangerous Structures/Places is carried out by the Compliance and Land Activation Unit of the Council. The Council said that this Unit is responsible for Planning Enforcement, Derelict Structures, Dangerous Buildings, and taking in charge and identifying lands in scope for the Residential Zoned Land Tax.
The Council said that the Deputy Decision Maker was able to confirm that all relevant individuals were consulted and their records were searched. It said that a desktop search was carried out in relation to the subject lands to determine whether any other unit had been involved in this case and or was likely to hold records in relation to the same. The Council said that the Deputy Decision Maker confirmed that the only unit with involvement in this case was the Compliance and Land Activation Unit, and specifically a named technician. It said a search was carried out in respect of all his records.
In its submissions, the Council stated that, after the release of records in response to the applicant’s August 2024 FOI request, there are no further records on the file mentioned in the applicant’s request. The Investigating Officer asked the Council about the Forensic Structural Engineer’s Report raised by the applicant in his application to this Office. The Council responded by saying that the Report was commissioned by the applicant and was submitted to the Council as part of his complaints appeal on 25 July 2024. The Council said that the file referred to by the applicant in his FOI request closed two months prior to this on 31 May 2024 and so the Report was stored under a different file relating to his Ombudsman complaint. It said that this report was not on the file the applicant referred to in his request as it did not form part of the consideration of the Dangerous Structure case. It also said that some correspondence issued by the applicant to the Council was not on the file he referred to in his request. The Council said this is not directly related to the Dangerous Structure case as this file closed on 31 May 2024.
Applicant’s submissions
In submissions to this Office, the applicant said that documents between his initial reporting of the Dangerous Structure on 7 June 2022 up to the technician’s Dangerous Building Report issued on 23 June 2023 were not released by the Council, except for two internal emails from 2022.
The applicant said that he is aware of numerous Health and Safety reports, documents, and photographs that were sent to the Council in 2024 that were also missing from the Council’s response to his FOI request. He said that he sent a 10-page report on the dangers of the structure to the Council on 29 March 2024, but this was also not part of the file release. The applicant also listed a number of emails sent to the Council that he said were not released.
In terms of the Forensic Structural Engineer’s Report, the applicant said he submitted it with the Dangerous Structure file as the subject line. He contended that the Council deliberately put the Report under a different file so as to obscure the significance of its findings.
The applicant attached screenshots to his submissions to show when he first contacted the Council on 7 June 2022 to report the Dangerous Structure. He also provided a screenshot of a Dangerous Building Report issued on 23 June 2023 which he said falsely shows the date of his complaint as 23 June 2023. He said that documents from this crucial one-year period are almost entirely missing and claimed that documents explaining why the Dangerous Structure was not inspected until a year later should be provided. The applicant said that minutes of a crucial meeting he had with a Council official on 27 June 2023 are also missing. He also provided a copy of his correspondence in the lead up to submitting a Forensic Structural Engineer’s Report on 25 July 2024, which all reference the matter and contain the Council’s file reference number.
The Investigating Officer raised the points that the applicant made in his submissions with the Council. The Council responded by saying that it had released the first 2022 Dangerous Structure file in response to the applicant’s February 2024 FOI request. The Council said that in relation to the reference it made in its original submissions to this Office about another file opened in 2024, that this file was referenced in error as it does not relate to the dangerous structure complaint made by the applicant. In terms of the meeting minutes that the applicant mentioned in his submissions, the Council responded to this point by stating that it asked the named technician if any meeting minutes were taken and he confirmed that he did not take meeting minutes and so no records exist in this regard.
The Council stated that another search for the report dated 29 March 2024 was carried out on foot of it being raised by the Investigating Officer following the applicant’s submissions. The Council said the report was not on the file the applicant had referred to in his request, but it was found on the 2022 file. The Council admitted it had made an error by not including this in its release of records. It also said that this report had no bearing on the outcome of the investigation into the Dangerous Structure case. It said that the matters raised by the applicant related to workplace health and safety/unsafe work practices. It said that these matters are not within the remit of the Council and that the Regulatory Authority for Health and Safety at work is the Health and Safety Authority.
In regard to various email and documents which the applicant claimed to have been sent to the Council, the Council said that it is not possible to confirm with 100% certainty whether certain documents alleged to have been sent by the applicant were not released without specific dates or details provided. It said that at all times, the case officer responding to the FOI request endeavours to conduct a comprehensive and thorough search of all records and correspondence on a particular case and with all individuals involved.
Analysis
The question I must consider in this case is whether the Council has undertaken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. In my view it has not.
While I accept that the applicant used the Council’s file reference relating to the Dangerous Structure in his original request, it seems to me that the Council took a narrow interpretation of his request. It is evident in my view from the wording of the applicant’s original request, for a copy of the complete Council file on the Dangerous Structure he reported on 7 June 2022, that the applicant is seeking all relevant records held by the Council relating to the relevant Dangerous Structure. While the Council may have closed the relevant file on 31 May 2024, I would expect it to have searched for any relevant records it either received or created up to date of the applicant’s request that relate to the Dangerous Structure. If the Council was unsure whether any such records were relevant it could have contacted the applicant to clarify his request. I note, for example, that the Council said that certain records were stored on a different file relating to the applicant’s complaint to the Ombudsman. I note too, that the applicant refers to investigations into related matters by the Standards in Public Office Commission (SIPO). Given the complaint made by the applicant to SIPO and/or the Office of the Ombudsman, I would expect the Council to search any files it has relating to these matters to establish if these files, and the individuals dealing with these matters, hold any relevant records coming with the scope of the applicant’s request.
It seems to me that the Council confined it searches to records held on the relevant Dangerous Structure file. Furthermore, the Council provided this Office with very limited details of the searches it said it carried out. As noted above, the Council said that the Deputy Decision Maker was able to confirm that all relevant individuals were consulted and their records were searched. It said that a desktop search was carried out in relation to the subject lands to determine whether any other unit had been involved in this case and or was likely to hold records in relation to the same. The Council said that the Deputy Decision Maker confirmed that the only unit with involvement in this case was the Compliance and Land Activation Unit, and specifically a named technician. It said a search was carried out in respect of all his records. While the Council provided an overview of the searches it undertook, its submissions contained very little detail about the actual searches. For example, no details were provided of the actual searches carried out by the named technician or whether searches were carried out of all relevant emails accounts. I note there are a number of different Council emails accounts contained in the records released to the applicant. It is unclear whether all of these accounts were searched. Furthermore, the Council acknowledged that the report sent by the applicant dated 29 March 2024 was erroneously omitted from release.
I would expect the Council to be able to provide details of any relevant electronic searches that were carried out of emails accounts and/or across its network, detailing the locations searched and any keywords used in any such searches.
Given the submissions in this case, I am simply not in a position to find that the Council has undertaken all reasonable steps to locate the records sought. Having considered the matter carefully, I consider the appropriate course of action is to annul the Council’s effective reliance on sections 15(1)(a) in refusing access to further records within the scope of the applicant’s request. I direct the Council to undertake a fresh decision making process in respect of the applicant's request, in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary. I strongly recommend engagement between both parties before the Council considers the request afresh with a view to clarifying any ambiguity the Council may have in relation to the applicant’s request. Indeed, such engagement would also provide the applicant with an opportunity to provided details of the correspondence he claims is missing from the records released to him.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find it was not justified in its effective decision to refuse access to further records coming with the scope of the applicant’s request under section 15(1)(a) of the Act. I direct the Council to consider the applicant’s request afresh.
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.
Richard Crowley
Investigator