Decision
Mr X and Donegal County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-158033-F4S7Z3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158033-F4S7Z3
Published on
Whether the Council was justified in refusing access, under sections 15(1)(a) and 15(1)(d) of the FOI Act, to records relating to certain planning applications, on the basis that all records relating to the planning applications are publicly available and that no other records exist or can be found
10 September 2025
On 16 October 2024, the applicant made three FOI requests for records relating to three specific planning applications at the same site. The applicant requested various records and information about site visits/inspections, about site notices being removed, and any records about advance notice of site visits/inspections.
In a decision dated 20 November 2024, the Council refused the applicant’s three requests under section 15(1)(d) of the FOI Act on the ground that the information concerning two of the planning applications is in the public domain and under section and 15(1)(a) of the Act as the records do not exist for one of the planning applications because it was not a valid planning application. On 13 December 2024, the applicant requested an internal review of the Council’s decision. On 10 January 2025, the Council affirmed its original decision. It said it could not identify any relevant records not already available in the public domain. It said this includes all documents potentially relevant to the request in the form of reports from internal Council offices and external statutory bodies. On 7 April 2025, the applicant applied to this Office for a review of the Council’s decision. The applicant provided some background context to his requests and claims the information he is seeking is not in the public domain.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions and its reasons for concluding that no further records exist. The applicant was invited to make submissions of his own. No response has been received to date.
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 in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
The Council’s position is that all records relating to the planning applications at issue in this case are publicly available on its planning website. The applicant claims the information he is seeking is not publicly available. Accordingly, this review is concerned whether the Council was justified in refusing access, under sections 15(1)(a) and 15(1)(d) of the FOI Act, to records relating to the three planning applications in question, on the basis that all records relating to the planning applications are publicly available and that no other records exist.
In his correspondence with this Office, the applicant set out reasons for seeking information about the planning applications at issue. He appears to be unhappy with how the Council has handled planning matters concerning the site in question. It should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, 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 FOI 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.
Furthermore, it is important to note that this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally. This means that we have no role in examining the appropriateness of the Council’s actions or its decisions in respect of planning matters.
Parts of the applicant’s requests appear to be seeking answers to questions rather than seeking access to particular records. It is important to note that, while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought. It is also important to note that the FOI Act does not require bodies to create records to provide the information sought, apart from a specific provision under section 17(4) of the Act which concerns extracting information held electronically, which does not apply in this case.
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. Of the three planning applications, one of the applications was incomplete as it was deemed invalid. A second planning application was withdrawn, and another planning application was granted but is now the subject of appeal. The Council said that each stage of the planning application process is set out on the Council’s ePlan system and all associated correspondence with each individual step of the application are publicly available there. For the avoidance of doubt, I find the Council was justified under section 15(1)(d) of the FOI Act in refusing access to those records relating to the three planning applications that are available online.
As noted above, the applicant contends that the information he is seeking is not available online. The Council’s position is that it holds no relevant records other than those that are in the public domain. Essentially, this amounts to a refusal of access to further records under section 15(1)(a) of the 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 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.
In submissions to this Office, the Council provided details of its record management practice in relation to planning applications, its efforts to locate the records sought by the applicant and why it concluded that no further relevant records are available other than those that are publicly available, 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 regard to the planning application that was deemed invalid, the Council said that the records associated with it are publicly available online on the ePlan system. It said that after this application was invalidated, there was no further consideration or assessment of the application.
For the application that was withdrawn, the Council stated that the records available on ePlan were the result of a site visit by a Planning official. The Council said that while the application was under consideration by the Planning Authority, none of these reports are placed in the public domain until such time as a decision has been made on the application. The Council stated that as this planning application was withdrawn, no further records are available.
In regard to the planning application that was granted, the Council said confirmation that the site notice was in place is detailed in the Planning Case Officer’s report together with photographic evidence of the same. It said that, in relation to whether the site notice was erected in accordance with the Planning and Development Act 2000 (as amended), there is photographic evidence contained in the Planners Recommendation Report that is publicly available.
The Council said that all records including the Planning Case Officer’s preamble and recommendation are set out in their report which is available to view online. There is no Planners Report on ePlan for the application that was withdrawn or for the application that was deemed invalid. The Council said that the applicant made a third party submission on the planning application and the planning authority’s consideration on each specific item of his submission was dealt with in the planner’s report.
In regard to the applicant’s request for records about the possibility that site notices may have been ‘maliciously’ removed and for records about advance notice of site visits, the Investigating Officer asked the Council if it holds any particular records relating to such matters that may not be uploaded onto ePlan. The Council responded by stating that it searched its records and found none relating either to the malicious removal of site notices or forewarning of site visits/inspections.
In its submissions, the Council said that letters to the planning applicant and objectors are made public immediately and contain requests from the Planning Section on further information or clarifications which are based on the Planner’s inspection. In this case, the applicant was an objector to the planning applications. The Council said that all parties are kept aware of the application as every stage, and so there are no further records available that would be relevant. The Council concluded its submissions by stating that the applicant had submitted a query to the Planning Section and was responded to directly. It said that this record was not uploaded to ePlan, but the Council said that the applicant should have a record of this correspondence. It noted that this correspondence was not specifically mentioned in his FOI request.
The Council said it examined the ePlan system, which contains all the records that are publicly available, and identified records from each of the three planning applications which it said should address the applicant’s request. The Council said that when the applications were under consideration, the Planning Reports were not uploaded online but now that the three applications have concluded, the records are available on ePlan. The Council said that if the records that the applicant is seeking are not on the Council’s planning website then the records do not exist. The Investigating Officer provided the applicant with details of the Council’s submissions, including a list of records identified by the Council which it said are now all available online.
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 records sought by the applicant. The Council’s position is that the records available now on ePlan address the applicant’s request. The three planning applications have now reached their conclusions with the Council, whether by a formal decision, invalidation, or withdrawal, and the Council has said that all records have been uploaded online. While it may have been the case that some records were not available during the Council’s consideration of the planning applications, I understand that they are now all available online. As noted above, details of the Council’s submissions were provided to the applicant, and he was invited to respond to those submissions if he wished to do so. Apart from the applicant’s comments in his correspondence with the Council and this Office that he believes there ought to be more records other than those publicly available, I have no information before me to dispute the Council’s position that it holds no other records relevant to the applicant’s request which are not now publicly available on ePlan. Accordingly, having regard to the explanation of its records management practices in respect of records relating to planning applications and to the description of the searches the Council said it undertook, and in the absence of any evidence to suggest that further relevant searches might be warranted, I am satisfied the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to the records sought by the applicant other than those that are 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 access, under section 15(1)(a) of the Act, to the records sought by the applicant that are not in the public domain on the ground that no further records exist or can be found.
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