Decision
Ms Z and Kerry County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-153584-Z6M7S5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153584-Z6M7S5
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a notice served under the Local Government Act 1964 concerning a recreational walking path on the basis that no further records exist or can be found
26 February 2025
In a request dated 4 July 2024, the applicant sought access to all records in March and April 2023 which led to the decision to serve a notice under Section 2 Local Government (Sanitary Services) Act 1964 related to a portion of a public, recreational walking path and the positions of all those involved in making that decision. In a decision dated 20 August 2024, the Council granted the request and released one record it considered within the scope of the request. On the same day, the applicant requested an internal review of that decision on the basis that only one record was located. On 18 September 2024, the Council varied its original decision and released additional records. On 11 November 2024, the applicant applied to this Office for a review of the Council’s decision as she believes that further records ought to exist.
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.
As outlined above, the Council released one record in its original decision and released further records at internal review stage. In effect, the Council’s position is that it has released all relevant records to the applicant. However, the applicant considers further records ought to exist. Accordingly, this review is concerned solely with whether the Council was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that no further records exist or could be found.
In submissions to this Office, the applicant said she believes there are other records in existence which may include the following:
• Communications between the engineers/workers on site on 23/3/24 (and after) and the Listowel Municipal District Engineer
• Communications between the Listowel Municipal District office staff and senior management including the Director of Roads and the CEO
• Minutes of meetings where this matter was discussed and decided upon, and
• Communications with the senior engineer who signed off on the notice.
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.
In its submissions to this Office, the Council provided some background information in relation to the decision to serve a notice under Section 2 of the Local Government (Sanitary Services) Act 1964 for a section of the walk in question. The Council said that on 23 March 2023, a Risk Assessment of the area was conducted by the Listowel Municipal District Engineer. It said that considering the risk to public safety and further to legal advice, on 24 April 2023, the Council issued a Notice under Section 2 of the Local Government Act. The Council said that it deems all legal advice received in relation to the issuance of such notice as legal professional privilege and by being part of this class the records would not be released in accordance with section 31(1)(a) of the FOI Act. The Council said that the omission of legal advice it received from its original decision letter and its internal review was an oversight.
In regard to the searches it carried out to locate the records sought, the Council said the relevant file is a recent file that would have involved a very small number of staff. It said, all staff within the area who have had any involvement have been engaged with. The Council said that physical searches of hardcopy files have taken place as well as electronic searches of email inboxes/outboxes. The Council said that keyword searches were also undertaken of its server. The Council noted that the staff involved at the time are currently still within the relevant section and said they are satisfied no further records were created or exist. It said staff have confirmed the Risk Assessment, that was released to the applicant, is the key record created as part of the decision-making process.
As noted above, the applicant applied to this Office for a review of the Council’s decision 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 the legal advice referred to above. In the circumstances, I simply cannot find that the Council had undertaken all reasonable steps to the locate all relevant records. Accordingly, I find that the Council was not justified in effectively refusing 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 she is not satisfied with the Council’s decision. In reconsidering the applicant’s request afresh, the Council should also have regard to the applicant’s submissions in this case concerning the possible existence of further records as outlined above.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that the Council was not justified in refusing access to further relevant records under section 15(1)(a) and direct it to consider the applicant’s request afresh.
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