Decision
Mr. X and Sligo County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-148349-T2H3D1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148349-T2H3D1
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to an accident involving the applicant on the basis that no further records exist or can be found and whether it was justified in refusing certain information it redacted from the records it released to the applicant under section 37(1) of the Act
2 May 2025
On 18 January 2024, the applicant submitted a request to the Council, through his solicitors, for all records relating to a road accident at a specific time and location. While the solicitor made the request on behalf of the applicant, this was not explicit in the request. All references to the applicant throughout this decision refer to the applicant and/or his solicitors, as appropriate. In his request, the applicant sought all material relating to the accident to include reports from members of staff, notes/diary entries made and information in respect of the placement of warning signs, any dusting of the road etc. following the accident. On 16 February 2024, the Council informed the applicant it was extending the time for processing the applicant’s request under section 14 of the Act due to the number of records related to the request.
On 14 March 2024, the Council part-granted the applicant’s request, releasing two records (a diary entry and an email) to the applicant, with personal information redacted from both records. The Council also informed the applicant that following notification of the accident, two staff members erected signs, indicating a slippery road and oil spill following the accident.
On 22 March 2024, the applicant requested an internal review of the Council’s decision and claimed further records ought to exist. The applicant also appealed the redactions made to the diary entry. On 12 April 2024, the Council varied its original decision. The Council said it had located one additional record, a further email, which it released with certain personal information redacted. It also decided to release some of the information which it had originally redacted.
On 17 April 2024, the applicant applied to this Office for a review of the Council’s decision. The applicant questioned whether the information redacted from the diary entry relates to the accident. He also requested a review of the information redacted from the emails. The applicant also made reference to a number of Council staff who he believed, based on the records released, may hold additional records. Finally, the applicant said he is seeking all engineering reports/ notes on the stretch of road identified, as they relate to the accident which occurred.
During the course of this review, the Council provided submissions to this Office indicating it had located further records in the matter. It released 11 additional records to the applicant comprising emails relating to the accident and refused certain information contained in a number of the emails under section 37 of the FOI Act. The Council said it contacted its legal representatives who are dealing with the applicant’s claim against the Council. It said that records on file relating to ongoing litigation are being refused under section 32(1)(a)(iv) of the FOI Act on the basis that access to the records concerned could reasonably be expected to prejudice or impair the fairness to criminal proceedings in a court or of civil proceedings in a court or other tribunal. The Council also said that it had erroneously relied on section 37 of the Act in refusing part of the diary entry. It explained that the redacted part of the diary entry is unrelated to the accident, and therefore outside the scope of the applicant’s request.
After the Council released these additional records and informed the applicant that it was refusing records relating to the ongoing litigation, the Investigating Officer sent emails to the applicant’s solicitor and attempted to contact him by phone to ascertain the applicant’s position on the Council’s latest response to his request. However, no reply 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 also had regard to the records released to the applicant. I have decided to conclude this review by way of a formal, binding decision.
In his application to this Office, the applicant contends that further records relating to his request ought to exist. Accordingly, this review is concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records.
As noted above, the Council refused access to certain information contained in the records it released to the applicant at both original and internal review stages. This review is also concerned with whether the Council was justified in refusing parts of those records under section 37 of the Act.
Finally, as outlined above, the Council located additional records during the course of this review and released a number of those records to the applicant, with certain redactions under section 37 of the Act. The Council also said that records on file relating to the applicant’s ongoing litigation against the Council are being refused under section 32(1)(a)(iv) of the FOI Act. For the reasons outlined below, I have made no decision on access to the additional records located by the Council during the course of this review.
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. My 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 its original submissions to this Office the Council said that no further records exist, beyond those which had already been released to the applicant i.e. the diary entry and two emails it part-granted in its decisions on the applicant’s request. The Council stated that searches had been conducted electronically on its email system, by date, name, and location (townland). The Council said there are no other locations that the records could be. The Council provided details of staff that had been contacted about the matter and an explanation that one named staff member had not been contacted, saying that at the time of the applicant’s request there was no public liability claim relating to this incident.
In further submissions, the Council stated that the two Council staff members who attended the road on the morning of the accident did so at the request of the Council’s General Services Supervisor. The Council said that, on the day of the accident in question, the emergency services contacted the Area Engineer, who then contacted the Technical Services Supervisor, who then contacted the General Services Supervisor, who in turn contacted the two staff members who attended the road on the morning of the accident. In relation to whether any phone-notes existed in relation to the above correspondence, the Council stated that it does not ordinarily record phone-notes, and as such no records exist in relation to the calls made that morning. Additionally, the Council stated that the two Council staff members who were in attendance on the road in question on the morning of the accident had been contacted and stated that they held no records relating to the applicant’s request.
As the applicant had made reference in his application to this Office about ongoing litigation with the Council, the Investigating Officer queried whether any records existed in relation to said litigation. The Council initially said there was no litigation in relation to the accident in question. Following further communications on the matter, the Council said it is dealing with a public liability case and the applicant’s request is seeking information on the same subject.
In its submissions to this Office, the Council outlined the process ordinarily followed when a public liability claim is received. It said, on receipt of notification of an alleged accident an e-mail is sent to the Senior Executive Engineer (SEE) and/or Executive Engineer (EE) with responsibility for the Engineering Area. The General Services Supervisor (GSS) is also informed. It said an acknowledgement may issue to the informant verbally or in writing. The Assistant Engineer (AE) with responsibility for Public Liability Claims is notified and makes a record of the alleged accident. The matter is then referred to Sligo County Council’s insurer who deals directly with the case.
In further submissions to this Office, the Council said it carried out further checks by e-mail with engineering and public liability staff and by phone with the legal representatives in this case. As noted above, the Council located a number of additional records falling within the scope of the applicant’s request. The Council subsequently wrote to the applicant’s solicitor on 23 December 2024 releasing a number of the additional records it located, some of which it partially redacted. In the schedule of records it provided to the applicant at this time, the Council indicated that it was refusing access to documents relating to ongoing litigation under section 32(1)(a)(iv) of the FOI Act. As noted above, the Investigating Officer attempted to contact the applicant to ascertain his position following the release of further records by the Council.
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. I have had regard to the submissions made by the Council during the course of this review, including the search details provided and the reasons it concluded that no further records exist.
As noted above, the applicant applied to this Office for a review of the Council’s decision primarily on the basis that further records ought to exist. It is clear from the Council’s submissions to this Office that it holds further records, namely those records it located during the course of the review. It is also unclear in my view, given the Council’s piecemeal approach in determining what records it holds in regard to the applicant’s request, whether in fact the Council has at this time undertaken all reasonable steps to ascertain the whereabouts of all relevant records. In the circumstances, I cannot find that the Council has undertaken all reasonable steps to the locate all relevant records. Accordingly, I find the Council was not justified in its effective decision to refuse access to further records under section 15(1)(a) of the Act.
It is not the role of this Office to make a first instance decision on the records located by the Council during the course of this review. In the circumstances, I consider that the most appropriate course of action to take is to annul the Council’s decision, the effect of which 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 decision.
As noted above, the Council redacted personal information under section 37 of the FOI Act from the diary entry and two emails that it originally released to the applicant.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".
In its submissions to this Office, the Council said that the information it redacted from the diary entry is unrelated to the applicant’s request. Having examined the diary entry, I am satisfied that the redaction does not relate to the applicant’s request, and that the Council was justified in refusing access to the information it redacted from the diary entry.
In regard to the two emails (dated 9 and 10 March 2021), the Council redacted the name and contact details of the external claims investigator who was investigating the accident on behalf of the Council and its insurer. It also redacted the applicant’s name in the subject line of these emails, as it appears the Council was unaware at the time of its decision that the solicitor who made the request is acting on behalf of the applicant. I am satisfied that the name of the claims investigator constitutes personal information under section 37(1) of the Act. I am also satisfied that none of the exceptions set out in section 37(2) apply and that the public interest in releasing the individual’s name does not outweigh the privacy rights of the individual concerned. While I do not consider the name of the company which the claims investigator works for is personal information, I note that these details were released by the Council in the records it subsequently provided to the applicant during the course of this review. Therefore, I do not consider it necessary to make any finding in this regard.
In relation to the references to the applicant in the subject lines of the emails, the solicitor who made the request on behalf of the applicant has provided this Office with a letter of consent from the applicant authorising access to his records. Section 37(2)(a) of the Act provides that section 37(1) does not apply where the information concerned relates to the applicant. In the circumstances, I direct the Council to release the information it redacted in the subject line of each of the emails dated 9 and 10 March 2021.
As noted above, the Council located a number of additional records during the course of this review and released a number of these records to the applicant, while redacting certain information under section 37 of the Act. The Council also refused access to records relating to ongoing litigation with the applicant.
The Investigating Officer subsequently sent three emails to the applicant’s solicitor and also contacted his office by phone in an effort to understand how the applicant wished to proceed following receipt of the Council’s correspondence. Unfortunately, no reply was received.
This Office has not had sight of the unredacted copy of the records which the Council part-granted during the course of this review, nor has the applicant given any indication if he is unhappy with the redactions made by the Council to these records. Furthermore, given the Council’s claim that records relating to ongoing litigation are exempt under section 32(1)(a)(iv) of the Act, as I have set out above, I consider the most appropriate course of action is to annul the Council’s decision and direct it to consider the applicant’s request afresh. In doing so, I expect the Council to set out its position concerning the entirety of the records it holds that come within the scope of the applicant’s request and to make a fresh decision on access to all of the records it located during the course of this review, including those it part-granted access to. This will enable the applicant to consider the full extent of the Council’s decision on his request and to avail of his right to an internal review and review by this Office if he is not satisfied with the Council’s decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was not justified, under section 15(1)(a) of the FOI Act, in its effective decision to refuse access to further records coming with the scope of the applicant’s request and I direct the Council to consider the request again, to include those records it located during the course of this review and to consider any further relevant records it may hold.
I affirm the Council’s decision to refuse access to the third-party personal information it refused in its internal review decision under section 37(1) of the FOI Act, apart from the information in the subject lines of the emails that directly relates to the applicant. I direct the Council to release that information to the applicant.
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