Decision
Mr. Y and Tailte Éireann
From Office of the Information Commissioner (OIC)
Case number: OIC-142466-C6M3X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142466-C6M3X9
Published on
Whether Tailte Éireann was justified, under section 15(1)(a) of the FOI Act, in refusing access to records concerning a property owned by the applicant, other than folios and maps that are publicly available for purchase or records held in Instruments that are subject to access under Rule 159 of the Land Registration Rules 2012, on the ground that no such records exist or can be found
25 June 2024
The Tailte Éireann Act 2022 provided for the dissolution of the Property Registration Authority (PRA) and OSI and the transfer of the functions of those bodies, along with the functions of the Commissioner of Valuation and the Boundary Surveyor, to Tailte Éireann. I understand that the applicant in this case is the owner of a property that had an Inhibition registered on the Folio (hereafter [Folio A]) by Tailte Éireann.
In a request dated 28 August 2023, the applicant made a four-part request to Tailte Éireann for access to “all documents held by the Property Registration Authority/Tailte Éireann in relation to:-
a) the registration of [the applicant] as owner of the property comprised in [Folio A];
b) all subsequent correspondence with the applicant and any other person in relation to the property;
c) the subsequent registration of an Inhibition on the Folio on or about the 21st August 2023 and
d) any policy alleged to have been relied upon to review the registration of [the applicant’s] registration as owner of the property”
On 30 August 2023, Tailte Éireann issued a decision on the applicant’s request. It refused access to the Folio under section 15(2)(a) and (b) of the FOI Act 2014, on the ground that “the folios and maps of the Register constitute a public record and any person may apply to inspect or obtain a copy folio file plan/map, on payment of the appropriate fee”. Tailte Éireann said, when an application for registration is completed, the legal effect of the documents lodged is registered on the Folio. The title documents are subsequently filed in the Land Registry in a file known as an “Instrument”. It said an inspection of the Folio will give the applicant the relevant Instrument number of all applications completed and registered on a folio. Tailte Éireann said access to Land Registry Instruments is governed by Rule 159 of the Land Registration Rules 2012. It informed the applicant he may apply for a copy of an Instrument under Rule 159 and that any person who is entitled to inspect an Instrument may obtain a copy of the Instrument, on payment of the appropriate fee. Tailte Éireann refused access to the relevant Instruments under section 41(1)(a) and (b) of the FOI Act, on the ground that access to Land Registry Instruments is governed by Rule 159 of the Land Registration Rules 2012.
On 5 September 2023, the applicant sought an internal review of Tailte Éireann’s decision to refuse his request pursuant to section 15(2)(a) and (b) of the FOI Act. The applicant said that his request extends beyond the Folios and maps which are publicly available. On 15 September 2023, Tailte Éireann affirmed its original decision. On 19 September 2023, the applicant applied to this Office for a review of Tailte Éireann’s decision. In his application, he argued that the records requested extend beyond the Folio and maps that are publically available and that further records relating to his request exist.
During the course of this review, the Investigating Officer provided the applicant with details of the submissions made by Tailte Éireann, including details of the searches conducted for relevant records and its reasons for concluding no further relevant records would exist outside of relevant Instruments, and invited him to make further submissions. The applicant subsequently did so. On foot of his submissions, the Investigating Officer sought further information from Tailte Éireann, and this was also provided to the applicant with an invitation to make submissions on the matter. He subsequently made further submissions to this Office.
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 between the applicant and Tailte Éireann and to the submissions of both parties. I have decided to conclude this review by way of a formal, binding decision.
While it is the position of Tailte Éireann that the records requested by the applicant are exempt from release under section 15(2)(a) and (b) and section 41(1)(a) and (b) of the FOI Act, the applicant maintains that the records requested extend beyond the Folio and maps that are publically available and that further records relating to his request exist. As noted below, I understand the applicant has received copies of the relevant Instruments through the access arrangements provided for in the Land Registration Rules 2012. However, he maintains that further records ought to exist.
This case, in essence, concerns a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether Tailte Éireann was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant’s request, other than those that are either publicly available to the applicant or available through the Land Registration Rules.
There are a number of preliminary matters that I wish to address at the outset.
First, I note that a number of submissions made by the applicant to this Office concerned the manner in which Tailte Éireann conducted the quality check and its registering of the Inhibition on the Folio. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
It is also important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Section 15(1)(a) of the 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 his/her 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 does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where the records that an applicant believes ought to exist have not been located.
While I do not propose to outline the submissions received by this Office in full, I can confirm I have had regard to them for the purposes of making my decision. As a number of submissions were made in the course of this review, I will set them out below in chronological order.
In his submissions to this Office, the applicant argued that his request for records was refused by Tailte Éireann on the sole ground that “folios and maps” were publicly available. He argued that while “folios and maps” are publicly available, his request was for material that was not publicly available. He argued that the file evidencing the work carried out by Tailte Éireann in respect of his original registration as owner of the property covered by [Folio A] is not publicly available, neither is any correspondence with third parties, which he sought at part 2 of the request.
The applicant argued that while the Inhibition itself may be noted on the publicly-available Folio, the work carried out in registering the Inhibition, the reasons underlying the registration of the Inhibition and any internal documents, which he sought at part 3 of the request, are not publicly available.
In relation to part 4 of the request, the applicant argued that the publicly-available material regarding the policies applied by Tailte Éireann and in particular, the Practice Notice given to solicitors, does not correspond to what happened in his case. He said for that reason, he sought the documents evidencing the exact policy alleged by Tailte Éireann to have been applied in this case.
Following the applicant’s application to this Office, the Investigating Officer sought a submission from Tailte Éireann detailing the steps taken to search for the records sought by the applicant and explaining the basis on which it had concluded that no further records existed or could be found.
In its initial response, Tailte Éireann reiterated its position that sections 15(2)(a) and (b) and 41(1)(a) and (b) of the Act apply. As details of these submissions were provided to the applicant, I do not propose to set these out in full. In summary, Tailte Éireann’s position was that any records, if they exist, would be held either on the Folio, and therefore exempt from release under section 15(2), or in Instruments, which would be exempt from release under section 41 of the FOI Act, as access to Instruments is restricted to certain parties under Rule 159 of the Land Registration Rules 2012.
Tailte Éireann said that an Instrument is the file under which the documents lodged to make an individual registration are contained. It said that an inspection or certified copy of Instrument [B] will provide all the information in relation to the applicant’s registration as registered owner of [Folio A]. It said that an inspection or certified copy of Instrument [C] will provide the information in relation to the Inhibition on [Folio A]. It said that the applicant was provided with copies of Instruments [B] and [C] following applications to Tailte Éireann.
Tailte Éireann said the applicant’s solicitor was informed by the Chief Examiner of Titles that quality checks on randomly selected applications are performed by staff in the Legal Services Unit. It said that application [B] (registration of applicant) was selected and a number of documents were requested from the applicant’s solicitor to satisfy the registration. It said that as the documents requested were not lodged, an Inhibition was registered on [Folio A] preventing registrations under any disposition (for value) by the registered owner except under order of Tailte Éireann.
With regard to all other records, such as correspondence or other documents not held on either the Folio or the Instruments, as well as those relating to the quality check, Tailte Éireann stated in its submissions that no further records exist or can be found.
In its submissions to this Office, Tailte Éireann said that no further records relating to parts (a) and (c) of the applicant’s request exist other than those held on Instruments [B] and [C]. It said it does not hold any records relating to the selection of application [B] (registration of the applicant) other than those held on Instruments [B] or [C], as the application was randomly selected for review.
With regard to records management, Tailte Éireann said that ‘ITRIS’ is its internal system used in Registration. It said that all applications for registration/copy applications are entered on ITRIS against the Folio number, and all documentation in relation to those applications entered on ‘ITRIS’ are filed in paper format with the application number. It said that a ‘Records Management System’ is a separate recording system usually for non-registration records, for example financial/corporate records.
It said the Records Management System was searched with [Folio A] as the key word and no file records were returned. Tailte Éireann said that the search for relevant records was initially conducted by Folio number rather than e.g. Folio owner name as every relevant record will appear when the Folio number is entered into the ITRIS. It said that the Folio number is required to verify the identity of the Folio owner, and therefore any correspondence retained by Tailte Éireann would contain that number. Tailte Éireann said that an application lodged on ITRIS is considered a dealing, and a hardcopy version is made and stored in a central warehouse once the dealing is completed and processed. It said that the Instrument number is the application number on ITRIS. Tailte Éireann said that a 'dealing' categorisation means the application is pending, while an 'Instrument' categorisation means it is completed.
In its submissions, Tailte Éireann said that any records relating to the Inhibition would be contained in the dealing/application, and only records supporting the registration of the Inhibition would be retained. It said that pending dealings would be kept in the relevant office, but once they are complete they are sent to the central storage. It said that anything created in relation to an Instrument is kept with that Instrument. Tailte Éireann stated that as the applicant had acquired copies of both the file for the Registration of the property as well as the Inhibition, he had access to the only records it holds that would be relevant to parts (a) and (c) of his request.
In relation to the random selection process for Tailte Éireann's quality checks, it said that there was no record containing the procedures at present as the process for creating such a document is not finished or signed off on. It said it does not hold any records relating to the process of quality checks on randomly selected applications. It said that no draft documents exist. It said that this was due to the merger in 2023, which I have outlined above. Tailte Éireann said that corporate documents such as those containing procedures for its random selection process would be stored on the Records Management System, but the quality assurance process is not currently set up on any of the systems, and therefore there isn’t anywhere for quality assurance records to be stored. It said there could be records from more recent quality checks on the shared folders, but not any relevant to this request.
The applicant made a number of further comments following the Investigating Officer’s update letter to him, which contained details of Tailte Éireann’s submissions.
He said that mapping revisions completed under a specified reference number [D] were not contained in the two Instruments he had accessed. He said that there were also no records containing notes or internal correspondence between named staff members of Tailte Éireann. He said that correspondence contained in Instrument [C] suggested ‘rulings’ had been made in relation to the application contained in Instrument [B], and therefore further records should exist. He said his understanding is that ‘rulings’ are entered into a Ruling Book.
He also said that he had received information from Tailte Éireann regarding a formal review process it carries out during the training period for new staff. He also outlined a Practice Direction on Rectification of Errors and Claims for Compensation and said that correspondence associated with the identification of an error should exist. He said that there should also be records of legal advice, as these would be relevant to either part (b) or part (c) of his FOI request.
In relation to the mapping revisions completed under Instrument [D], Tailte Éireann said that the relevant records are contained in that Instrument, and that there is no record of the applicant requesting a copy of it. Tailte Éireann said that it is open to the applicant to request a copy of this Instrument through the process previously outlined. It said that any correspondence supporting the mapping registry amendment would be contained within this Instrument. It said that as the records are contained in an Instrument, access under the FOI Act is prohibited per section 41(1)(a) of the FOI Act.
In relation to internal correspondence between named staff members of Tailte Éireann, it said that a number of staff are no longer working in Tailte Éireann, and all remaining staff were asked to search their files with a number of keywords (the Folio number, the reference numbers for specific Instruments, and the name of the applicant) in order to locate any relevant records held outside of those contained in the Instruments. Tailte Éireann said these staff confirmed they held no records separate to the relevant Instruments. Tailte Éireann said that any relevant records containing internal correspondence would be filed with the relevant Instrument.
In relation to rulings, Tailte Éireann said that rulings are the queries that were raised during the registration process with the lodging Solicitor. It said that failure to answer the rulings/queries resulted in the registration of an Inhibition on the applicant’s Folio. It said that a named member of staff was the Chief Examiner of Titles at the time when the Inhibition was registered on the Folio, and she is a qualified barrister specialising in Land Law. It said that the named member of staff set out the rulings/queries in the correspondence to the lodging Solicitor. It further said that there is no ‘Ruling Book’ per the applicant’s contentions to this Office, and any rulings/queries would be contained in the relevant Instrument. Tailte Éireann also stated that no further legal advice was required due to the named staff member’s qualification as a barrister, and therefore no relevant records containing further legal advice exist.
In relation to the quality check, Tailte Éireann stated that the check on [Folio A] was not as part of staff supervision or training (the formal review process outlined by the applicant in correspondence with this Office), and was part of a random general quality check of a number of folios. It said that the Chief Examiner of Titles would have directed a quality check with a random selection of folios, and staff would notify her verbally if any of the folios checked required further attention. Tailte Éireann said that no written records were located in the course of searches that were relevant to the quality check.
The applicant in further submissions to this Office contended that further internal correspondence must exist as there were tracked changes in correspondence sent to him on a specified date. He said that reviewing the tracked changes showed that at least two staff members edited the correspondence, but no correspondence in Instrument [C] discloses the author of the original document and the persons that had an input into its final composition.
As noted above, Tailte Éireann said any records relating to the mapping revisions identified by the applicant would be contained in Instrument [D]. In the course of this review, the applicant applied for Instrument [D] through the process outlined above in line with the Rule also outlined above. He subsequently notified this Office that Tailte Éireann had not been able to locate this Instrument. Following correspondence between this Office and Tailte Éireann about this Instrument, it confirmed that Instrument [D] had been located. It said that it was marked completed on the system when it should have been marked transferred to [reference number E]. It said that a copy of this Instrument has since been issued to the applicant.
It is important to note that section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned take all reasonable steps to locate relevant records. Furthermore, public bodies are not required to search indefinitely for records in response to an FOI request. This Office may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.
The question I must consider in this case is whether Tailte Éireann has taken all reasonable steps to ascertain the whereabouts of records relevant to the applicant’s request. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found outside of records contained in the relevant Instruments (which are subject to access under Rule 159 of the Land Registration Rules 2012), and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has. Furthermore, while I note the applicant’s recent comments that tracked changes in a document he received from Tailte Éireann suggest further records ought to exist, I am satisfied that Tailte Éireann has carried out all reasonable searches for relevant records coming within the scope of the applicant’s request.
It seems to me that a thorough search has been undertaken using appropriate search terms and asking the relevant individuals to look for records. I appreciate the applicant will be disappointed with my decision. However, it is important to recall that the test in section 15(1)(a) is whether all reasonable steps have been taken. It is also important to recall that, as set out above, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more 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 Tailte Éireann has provided sufficient information to this Office to demonstrate that it took all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further relevant records can be found.
Accordingly, I find that Tailte Éireann was justified under section 15(1)(a) of the FOI Act in refusing access to any additional records relevant to the applicant’s request on the ground that no further relevant 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 decision of Tailte Éireann.
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