Decision
Mr M and Sligo County Council
From Office of the Information Commissioner (OIC)
Case number: 130093
Published on
From Office of the Information Commissioner (OIC)
Case number: 130093
Published on
Whether the Council was justified in refusing access to records sought by an applicant, relating to the transfer of a Group Water Scheme (the Scheme) to the Council, on the basis that the records sought did not exist, under section 10 of the FOI Act.
2 February 2014
On 15 February 2013 the applicant made an FOI request to the Council for records held by the Council, pertaining to the transfer of the ownership of the Scheme, from the membership of the Scheme to the Council. The records sought were "Copies of the lists of names and signatures of scheme who have consented to ownership or control of the scheme being turned over to the Council; copies of the list of members/users who have not so consented; dated and signed copies of the resolution and other correspondence where the council have been requested by persons acting as representatives of the scheme to take the scheme into its ownership or control. "
In its response dated 15 March 2013, the Council released a copy of the resolution received from the Scheme, but withheld details of the signatories and copies of their signatures, under Section 26 of the FOI Act, which exempts information received in confidence from release, subject to a 'public interest' test. The Council also refused to release the information concerning the members of the Scheme who did not consent to the transfer of ownership of the Scheme, on the grounds that it did not have the information in question, under Section 10(1)(a) of the FOI Act. The Council did not address the aspect of the request relating to "other correspondence".
The applicant then sought a review of the decision, by the Council, in accordance with section 14 of the FOI Act.
In its decision on this request, dated 8 April 2013, the Council released the details of the signatories to the resolution, but not their signatures, which were again withheld under Section 26 of the FOI Act. It again failed to address the aspect of the request relating to "other correspondence".
The applicant then sought then sought a review of the Council's decision by the Information Commissioner, on 22 April 2013. The Council subsequently released the signatures of the members who assented to the transfer of the ownership of the Scheme to the Council, on 30 July 2013.
Therefore the outstanding matters from the applicant's original FOI request are the list of members / users of the Scheme who have not consented to the transfer of the ownership of the Scheme, which was refused by the Council on the basis that it does not exist, and "other correspondence". In relation to the latter, the Council clarified, in subsequent correspondence with this Office, that no "other correspondence" was released because none exists, and therefore this also effectively constitutes a refusal under section 10(1)(a) of the FOI Act.
In carrying out this review, I have had regard to correspondence between the Council and the applicant as set out above, to details of various contacts between this Office and the Council, to details of communications between this Office and the applicant, and in particular to the letter sent to him by Mr. Richie Philpott, Investigator, dated 18 December 2013, which invited him to make a further submission on the matter, should it be the case that he was still unhappy with the Council's position. The applicant subsequently made a number of further submissions. Having regard to the applicant's submissions, I have decided to conclude this review by way of a formal binding decision. In doing so I have also had regard to the relevant provisions of the FOI Act.
This review is concerned solely with the question of whether or not the Department was justified in its decision to refuse access to certain records on the basis that the records to which it has refused access do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
I should explain at the outset that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information, as it does not oblige public bodies to create or compile information which does not exist. Accordingly, the question I must consider is whether the Council was justified in deciding that the records, containing the information sought, do not exist, or cannot be found. Section 10(1)(a) of the FOI Act provides as follows:
"A head to whom a request under section 7 is made may refuse to grant the request if
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken............"
The Commissioner's role in cases such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie) .
The applicant is clearly dissatisfied with the records supplied to him by the Council to date. On several occasions he has expressed the view that there should be further records pertaining to the transfer of the ownership of the Scheme. However, the Council has explained that there was no requirement for extensive records pertaining to the matter to be retained. Mr. Richie Philpott of this Office communicated directly with the member of the Council's staff with responsibility for group water schemes, and that officer has confirmed that no other relevant records exist. The Council has explained that it relies on staff knowledge of the Council's interactions with the Group Water Schemes in the county, and that it does not generally keep extensive records pertaining to them. The Council explained that the signed resolution was submitted by the Scheme members following a telephone conversation between a Council staff member and a member of the Scheme in 2009. It explained how the submission was made without a covering letter, and that it did not retain a written record of the telephone conversation in question.
The applicant has submitted that records on these matters ought to have been created by the Council. In implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
The Council has also clarified that it had no requirement to compile a list of persons who did not consent to the transfer of the ownership of the Scheme. The legal requirement, to allow the transfer of the ownership of the Scheme to proceed, was for evidence of the consent of more than two-thirds of the members of the Scheme to the transfer. As the Council is aware of how many members there are in the Scheme, it merely required the signed consent of more than two-thirds of that number, which it has received. Therefore, the Council has confirmed that a record of the members of the Scheme who did not consent to the transfer, as sought by the applicant, does not exist, and is not held by it.
With regard to the records held by the Council, it has confirmed that it holds a single manual file on the matter, and that all information to the matter is held in manual, and not electronic, form. It has confirmed that it is satisfied that no other file or record pertaining to the matter exists. Having considered the Council's position, I am satisfied that it is reasonable. Based on the circumstances as set out above, I am satisfied that the Council was justified in deciding that it does not hold the information sought. Thus I am satisfied that the Council has justified its refusal of the applicant's request under section 10(1)(a) of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of the applicant's request.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator