Decision
Mr & Mrs R and Sligo County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120036
Published on
From Office of the Information Commissioner (OIC)
Case number: 120036
Published on
Whether the Council was justified in deciding that no further records exist or can be found relating to the applicants' request for records concerning the applicants and/or relating to building works carried out (or to be carried out) to their dwelling house
18 March 2014
On 14 April 2011, the applicants made an FOI request for all information concerning themselves and/or relating to building works carried out (or to be carried out) to their dwelling house. The Council's decision of 11 May 2011 refused the request under section 22(1) of the FOI Act because legal proceedings had been issued. The applicants sought an internal review of this decision and on 20 October 2011, the Council issued an internal review decision granting the request in full. On 08 February 2012, the applicants sought a review by this Office on the basis that further records should exist.
On 14 February 2014, Ms Mary Byrne, Investigator, wrote to the applicants outlining her preliminary views on the matter and providing them with an opportunity to make any further comments which they wished to have taken into account before this Office reached a final decision. No response was received from the applicants by the requested response date of 07 March 2014. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In carrying out this review, I have had regard to the correspondence between the Council and the applicants as set out above. I have had regard also to communications between this Office and the applicants, and between the Office and the Council. Finally, I have had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether or not the Council was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
The Council's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable.
The Commissioner's role in a case 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 was reasonable. The Commissioner's understanding of his 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 the website of this Office at www.oic.ie).
In its submissions to this Office, the Council detailed the various searches conducted by it to locate all records relevant to this request. The Housing and Planning sections were searched for the relevant records and all staff involved with the applicants were asked whether they held any relevant records. The Council also compared the schedule of documents released on foot a 2006 FOI request from the applicants against the schedule of documents for the current FOI request. Two records were identified which had been released on foot of the 2006 FOI request but not with the current request. These records were released again to the applicants on 19 December 2013.
By letter dated 27 June 2012 and by fax dated 09 October, 01 November and 23 November 2012 the applicants indicated that, following an examination of the documents released, several documents were omitted i.e. a list of contractors, a quotation dated 12 July 2004, four architectural plans/drawings produced by the Council and notes of telephone conversations, reports of inspections or diary entries of Council staff who dealt with the applicants.
This Office contacted the Council and, following a re-examination of the file, it was discovered that the quotation dated 12 July 2004 had been omitted from the information given to the applicants as part of this FOI request, due to a clerical error, but that this record had previously been provided to the applicants as part of their previous request in 2006. This record was released again to the applicants. A further check for any diary entries, notes of travel, notes of phone calls etc. was carried out and all staff listed by the applicants in their submissions (apart from two staff who have since left the Council) were contacted in this regard. Copies of entries in the diaries of two officials were located and forwarded to the applicants. The Council stated that no further notes, memos etc. were located that had not been previously released to the applicants.
The Council stated that it does not have the other information requested i.e. list of contractors and four architectural house plans/drawings produced by the Council. With regard to the list of contractors, the Council stated that there is no such list on its file. However, it did say that it was custom and practice at the time for the Housing section to provide an indicative list of local contractors upon request to applicants carrying out works. The Council stated that it is possible therefore, that the applicants were given a list of contractors as part of the 2006 FOI request and/or with the original letter to them dated 07 April 2004 enclosing plan and specification of the works and requesting submission of three quotations. However, the Council stated that no such record is now available to prove or disprove this fact and, if it was provided, no copy was retained. It also stated that the practice of making available an indicative list of contractors for convenience has been discontinued for some time.
The Council stated that the matter of the four architectural house plans/drawings was again reviewed. It stated that the schedule of records released in the 2006 FOI request identifies an entry as follows: Letter to the applicants dated 07 April 2004 enclosing plan and specification of the works and requesting submission of three quotations. The Council stated that it not clear what was enclosed with this letter as a copy of the actual documents released was not retained but it considers that most likely the drawings prepared by the Council dating February 2004 for the purposes of the proposed extension would have been provided for pricing purposes. It also stated that the 2011 FOI request schedule again listed as released these February 2004 drawings and it also released subsequent amended drawings dated November 2005 and both are referred to in that schedule as "Nov 05 - Drawings by Pat Noone & Feb 04 - Drawings by Pat Noone." I note that Ms Byrne contacted the applicants on 07 November 2013 and asked them to forward, to this Office, copies of the four plans/drawings referred to by them as the Council is unable to identify which plans/drawings are being referred to and that no reply was received to that letter.
I have reviewed the steps taken by the Council to identify the records sought in response to the applicants' FOI request and the explanations provided to this Office. In the absence of a response by the applicants to Ms Byrne's request to them to forward copies of the four architectural house plans/drawings referred to by them in correspondence to her, I am satisfied that the Council was justified in concluding that no further records exist that came within the scope of this review. Accordingly, I find that the decision of the Council was correctly made in accordance with section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of further records of relevance to the 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.
Sean Garvey
Senior Investigator