Decision
Mr. Y and Louth County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-157133-G6F9C0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157133-G6F9C0
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further emails and photos sent between it and the applicant, after having taken all reasonable steps to locate any relevant records
4 July 2025
In a request dated 16 December 2024, the applicant sought access to all emails between himself and Council staff that he engaged with, including “both writing and photos” he had sent to the Council. On 9 January 2025, the applicant sought an internal review of his request, which was premature as the four-week timeframe for the Council to respond as prescribed in the Act had not yet elapsed. The applicant waited a further 15 days and, having not received a response, he again prematurely appealed to this Office for a review of what he considered the Council’s deemed refusal.
This Office engaged with the Council, and it was discovered that the applicant had used multiple email addresses to contact the Council with at least one or more of the email addresses blocked by Council software. The Council said it had taken steps to block the applicant from contacting it via email after what it described as abusive behaviour on the part of the applicant. The Council said the request under review here had been sent from the blocked email address and could not confirm if the applicant was aware that any of his email addresses had been blocked. On 17 February 2025, the Council agreed to carry out an internal review of the applicant’s request. On 27 February 2025, the Council refused the applicant’s request under section 15(1)(a) of the Act. In its letter, the Council referred to its decisions in response to two previous requests from the applicant and said it had searched emails between three named staff members. On 4 March 2025, the applicant applied to this Office for a review of the Council’s decision to refuse his request under section 15(1)(a) of the Act.
The Investigating Officer invited the Council to make submissions in support of its decision. While the Council did not make substantive submissions, it engaged with the Investigating Officer and notified him that it was necessary for it to carry out further searches. During this review, the Council said that one area of the Council had completed its searches and released all records to the applicant, but another relevant area had yet to complete its searches. To date, no further submissions have been made despite a number of attempts by the Investigating Officer to get an update from the Council and in particular to get details of the searches undertaken by 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 as outline above and the submissions made to date. 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 access to further relevant records, under section 15(1)(a) of the FOI Act, on the basis that further records do not exist or cannot be found after it has taken all reasonable steps to locate the records sought by the applicant.
In his correspondence with this Office the applicant said he is seeking to prove the Council was aware of certain information that he had shared with it. It is important to note that section 13(4) of the Act provides, 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. This means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except insofar as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, which is not relevant in this case.
It is also important 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.
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 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.
The Council’s submissions
As noted above, the Council did not provide substantive submissions about the searches it had undertaken to locate all relevant records, but it did engage with the Investigating Officer at the outset of this review. In a letter dated 8 April 2025, the Council said that, in re-examining the file, it discovered the applicant had corresponded with the Council from three different email addresses. It said the original search only dealt with one email address and was limited to correspondence with three staff members. The Council stated it intended to search all three email addresses for the historical records back to 5 May 2022, which it said was the date of the applicant’s housing application.
The Council said this would involve the examination of email accounts for two members of staff who are now retired. Additionally, the Council said, it was checking for the other staff currently in Council employment named in the Investigating Officer’s request to the Council for focussed submissions. The Council said this would involve the examination of eight Council staff email accounts (current and former). It said that when these searches were completed, it envisioned that all records requested will have been released to the applicant and that this work would be completed as soon as possible.
On 1 May 2025, following a request by the investigating Officer for an update, the Council said emails between the applicant and four named Council staff members were being released to the applicant. The Council also said that the request for emails between the applicant and three other staff members had been referred to its Corporate Services Section. The Council said that when these emails are retrieved, they will be released to the applicant. The Investigating Officer asked the Council to informed him when these searches were completed and if further records are released. The Investigating Officer also reminded the Council that submissions detailing the searches carried out would need to be provided to this Office. Despite further attempts to get an update from the Council, no further response has been received and no substantive submissions have been provided about the searches undertaken by the Council to locate all relevant records.
The applicant’s submissions
While there were no substantive submissions to notify the applicant of and for him to comment on, he was issued records during the course of this review and was kept informed of the Council’s responses to this Office. Following the release of records by one area of the Council, the applicant argued that further records ought to exist, including some attached photographs to a copy of one of the emails released to him and correspondence with certain named members of staff.
My analysis
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.
The question I must consider in this case is whether the Council has taken all reasonable steps to ascertain the whereabouts of all relevant records coming with the scope of the applicant’s FOI request. Given the circumstances outlined above, it is not possible for me to conclude that the Council has taken all reasonable steps to locate all relevant records that it holds. While I note that the Council provided some records to the applicant, it also said that it had referred the possibility of other emails between the applicant and three other staff members to its Corporate Services Section. No information has been provided on the outcome of this referral. Neither did the Council provide this Office with any significant detail of the searches it undertook to locate the records sought. In fact, it is very disappointing that the Council has not responded to our enquiries about the searches it has undertaken.
Having considered the submissions in this case, I simply cannot find the Council was justified in refusing access to further records under section 15(1)(a) of the FOI Act. In the circumstances, it seems to me that the only logical course of action available to me is to annul the Council’s decision and remit the matter to the Council. The effect of this is that the Council must consider the applicant’s request afresh and make a new, first instance decision 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 he is not satisfied with the Council’s fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision and direct it to carry out a new decision-making process on the applicant’s request.
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