Decision
Ms. X and Tipperary County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-146185-W4F9G4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146185-W4F9G4
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to records related to the Nenagh Town Council Works Programme for 2004, on the basis that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken
31 May 2024
On 17 October 2023 the applicant made an FOI request for any records relating to Nenagh Town Council Works Programme 2004 specifically related to the provision made for speed ramps in St. John’s Place, including the decision making to include this item and any subsequent planning of the execution of the work and the culmination of same. The applicant’s request followed on from a previous request she made to the Council for records relating to St. John’s Place car park, in response to which the Council provided a number of records to the applicant that included in document containing a budget for the Nenagh Town Council Works Programme 2004, including a budgeted amount for St. John’s Place speed ramps.
On 1 November 2023, the Council refused the applicants request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found. On 2 November 2023, the applicant applied for an internal review of this decision and said she would expect, at a minimum, that financial records relating to the works must be available. On 22 November 2023, the Council issued its internal review decision, in which it affirmed the original decision to refuse the applicants request. In its decision, the Council outlined the searches it carried out in an attempt to locate any relevant records. On 5 February 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, the Council released three records to the applicant which contain information about the works programme, including the Nenagh Traffic Management Study 2001 and two spreadsheets containing financial information. 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. The Investigating Officer invited the applicant to make submissions on the matter, however no further response from the applicant was received.
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, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the Nenagh Town Council Works Programme 2004 specifically related to the provision made for speed ramps in St. John’s Place, on the basis that no further relevant records exist or can be found after all reasonable searches have been carried out to locate them.
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.
In its submissions to this Office, the Council said that decisions on the Nenagh Town Council Works Programme 2004 were made at that time by a different entity which no longer exists i.e. Nenagh Town Council. The Council said that under the Local Government Reform Act 2014, Town Councils were abolished. It said that in the case of Tipperary, the former North and South Tipperary County Councils and seven Town/Borough Councils were amalgamated into one Council, namely Tipperary County Council with five Municipal Districts, of which Nenagh Municipal District is one. The Council said that Municipal Districts were established as part of the 2014 Act. The Council said that in the case of Nenagh Town Council, it was abolished in 2014. The Council said that the Municipal District was established as a separate entity and its functional area is far greater than the former Nenagh Town Council. The Council said that some staff of the former Town Council still work within the newly formed Tipperary County Council.
In relation to the searches carried out, the Council listed the various locations searched, as well as the staff consulted as part of the searches conducted. The Council stated it carried out searches of the electronic storage drives and file indexes of both the current Nenagh Municipal District, and the former Nenagh Town Council. The search terms used in these searches were ‘Nenagh Town Council Works Programme’ and ‘Johns Place/John’s Place’. The Council also stated that at the internal review stage, the Finance Section of Tipperary County Council were consulted to check if there were any electronic financial records relevant to the request. The Finance Section advised that there was a job code for John’s Place Speed Ramps- however, there was no expenditure listed against the code. The Finance Section said that any expenditure relating to the speed ramps would have been included in the overall roadworks programme, but it is not individually identifiable.
The Council also provided details of staff who were consulted in an effort to locate relevant records. The Council said it consulted three former staff members of the Nenagh Town Council, who were employed at the time of the 2004 Road Works programme, and are currently still employed with Tipperary County Council. The staff members stated that it was not the practice to open a physical file for the Road Works programme for any year at that time. The engineer from 2004 was also contacted and stated that he had no recollection of any files pertaining to the Road Works programme in question.
The Council stated that when the former Nenagh Town Council moved offices in 2004, no records were left behind in the former office space. The Council stated that it is possible that records relating to the 2004 Road Works programme were shredded by Nenagh Town Council, however the Council cannot validate this given the passage of time. The Council said that the former Acting Town Clerk was consulted and stated that Nenagh Town Council did not have a Data Retention Policy in place at the time. The Council stated there is no file available currently nor is there a documented reference in the filing index from the previous Town Council which would indicate that a file ever existed.
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.
Having regard to 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 the records sought by the applicant and that it has adequately explained why no relevant records can be found. In the circumstances, I find that the Council was justified in refusing access to further records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, 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 to further records relating to 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.
Richard Crowley, Investigator