Decision
Mr. Z and Offaly County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-148146-N1C4R4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148146-N1C4R4
Published on
Whether the Council was justified in refusing access, under sections 15(1)(a) and (b) of the FOI Act, to further records about its budget and expenditure on certain road maintenance and improvement works
25 February 2025
By email dated 7 February 2024, the applicant submitted a request to the Council seeking information relating to the Council’s Roads Budget for the last five years in relation to a specific section of the budget, namely section “B04 Local Road – Maintenance and Improvement” works, as follows:
1. A breakdown of Section B04 for budgets 2020/21/22 and an explanation for the variance in 2022 figures.
2. Is there an “Actual V budget” breakdown available anywhere?
3. Can [the Council] provide expenditure data on B0402 Local Rd Surface Rest/Road Reconstruction/Overlay? Is there data available for what roads/areas resurfacing works were carried out for 2020/2021/2022/2023 and the associated spends?
4. Same as above for B0405 Local Roads General Maintenance Works
5. It is clear that B0402 Local Road Surface Rest/Road Reconstruction/Overlay has seen no increase in budget for over 3 years, can you provide an explanation as to why?
6. Is there a forecast for the additional 150K that has been budgeted in B0405 Local Roads Maintenance Works in 2024?
7. Is there currently any National or EU schemes available for the reconstruction of local roads in rural/farming communities?
8. What is currently being planned for the road leading from Corbetstown, through Gar and onto Rhode and if it has been listed for resurfacing/reconstruction before the expected completion of the Yellow River Wind Farm in early 2025?
I have numbered the various parts of the request as outlined above for ease of reference.
On 12 February 2024, the Council acknowledged the applicant’s request and said that parts 5, 6 and 7 of his request do not constitute a request under section 12 of the FOI Act. It said the Council will therefore not answer these parts of the request. The Council informed the applicant that he may contact its FOI Officer should he have any queries or concerns about his request. The Council informed the applicant that he could expect to receive a decision on his request by 5 March 2024.
On 19 March 2024, having received no decision from the Council, the applicant sought an internal review of the Councils’ deemed refusal of his request. On 10 April 2024, the Council part-granted the applicant’s request. The Council said that no records exist regarding a breakdown of section B04. It said that an examination of 2022 and 2023 budgets shows consistency with no variance. The Council said no records exist in response to the applicant’s query about "Actual V Budget". The Council provided the applicant with a copy of its Annual Roads Programs and Annual Financial Statements for the years in question. It also provided a response to the applicant’s query in part 8 of his request.
On 11 April 2024, the applicant sought a review by this Office of the Council’s decision. He raised a number of concerns about the response he received from the Council, including what he described as its dismissal of several elements of his request under section 12 of the Act.
During the course of the review the Investigating Officer sought submissions from the Council in support of its decision. The Investigating Officer also contacted the applicant seeking clarification about elements of his request including the records sought and the variance he referenced in part 1 of his request. The applicant stated that upon further examination of the reports, he accepted that there was no variance in the reports, and stated that this part of his request could be removed. He further clarified that the records he was seeking were the records used to generate the Council’s reports. The Investigating Officer sought further submissions from the Council regarding the records used to generate the reports sought. In a subsequent email to the applicant, dated 28 November 2024, the Investigator asked the applicant for clarification about the records he is seeking. While the applicant rang about the email of 28 November 2024, he did not make any substantive submissions.
On 29 January 2025, the Investigating Officer wrote to the applicant with details of the Council’s submissions wherein it outlined its reasons for concluding that it does not hold the records sought. The Investigating Officer invited the applicant to make further submissions and noted that he had not provided submissions in response to her previous request seeking clarification about what records he considered to be outstanding. To date, no response has been 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 in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in its decision to refuse access to further records in regard to parts 1-4, and 8 of the applicant’s request under section 15(1)(a), and to refuse parts 5-7 of the applicant’s request under section 15(1)(b) of the FOI Act on the ground that it did not contain sufficient particulars to enable the records sought to be identified.
For the benefit of the applicant, I wish to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Furthermore, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act to extract records or existing information held on electronic devices.
Section 15(1)(a) – Parts 1-4, and 8 of the applicant’s request
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 practise relate to the records in question.
As noted above, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
In its submissions to this Office, the Council stated that its position is that the records sought never existed and were never created by the organisation. It stated that in common with all local authorities in the country, the Council prepares an annual budget in accordance with the Local Government Act 2001, Section 102, and subsequent regulations. The Council stated that it also prepares its annual financial statements in accordance with the accounting code of practice issues by the Minister under section 107 of the Local Government Act 2001, and subsequent regulations. The Council said that the formats of these documents are prescribed nationally. It said that there is a budget comparison supplied in note 16 in the Annual Financial Statement (AFS). It stated that these documents have been supplied to the applicant and as such it has complied with the request using available public documents. It stated that the budgets are audited each year by the Local Government Audit Service. The Council stated that breakdowns of section B04 for the Council Budget’s 2020/21/22 were not created. It stated that all the records requested which related to the budgets, were released to the applicant in the Annual Financial Statements. The Council stated that the Annual Financial Statements that were released to the applicant are available on the Council’s website.
As noted above, the Investigating Officer corresponded with the applicant seeking clarification about his request. In his initial submissions, the applicant said that he was not seeking the Annual Financial Statement records and Roads Programme records released to him, rather that he was seeking records of the documents used to generate these reports. The applicant further stated that he did not believe that there were no records of budgets, spends etc. that were used to generate these records. The applicant also said that he was seeking an excel copy of the spreadsheets provided in the pdf versions of the Annual Financial Statements released to him by the Council.
Following the applicant’s submissions, the Investigating Officer sought further submissions from the Council regarding the records used to generate the reports released to the applicant. In regard to its Annual Financial Statements and Budgets, the Council said it does not hold records of tables in excel spreadsheet format. It said that the Annual Financial Statements and Budget books are generated using a bespoke computer software package referred to as Enterprise Resource Planning (ERP) called Agresso. It said that this software is used to manage day to day business activities such as accounting, procurement, project management, risk management and compliance, and supply chain operation. It said that the data used to generate the tables within the Annual Financial Statements are imbedded in the Agresso system. It stated that the data is drawn from a number of sources within the financial system and is identified by codes which the system reads. The Council stated that Agresso holds documents on actual transactions which form the basis of the budget formation. It stated that Agresso does contain a function which enables certain reports and tables to be exported to excel, and that the amount of time it would take to export tables and reports to excel spreadsheets would depend on the extent of the specific enquiry.
The Council further stated that regarding the Annual Roads Programme, similar to the Annual Financial Statements, the roads mapping department uses an enterprise resource planning system to generate the Roads Programme which draws data from the Roads Mapping system and the financial system. It said that the Roads Programme is recorded across two systems and that Agresso records all financial expenditure relating to the Roads Programme. It said that the actual recording of the interventions on each road is recorded post and pre works via the application of a Pavement Surface Condition Index (PSCI) and are recorded on the Maproad Asset Management system as managed by the Road Management Office in Donegal.
The Investigating Officer asked the Council if data relating to the applicant’s request can be extracted from its electronic systems. In response, the Council said that it was of the view that the data requested has been issued to the applicant, namely the Roads program and the Roads budget. It stated that there was no request for technical data pertaining to the actual asset and that it would not be reasonable or practical to issue this level of information which would require a specialist skillset for the extrapolating and interpolating of the information. It further stated that all of this information is considered by the Council to be commercially sensitive.
As outlined above, the Investigating Officer provided details of the Council’s submissions wherein it outlined its reasons for concluding that it does not hold the records sought. Furthermore, the Investigating Officer asked the applicant to provide further clarification about what records relating to his request remained outstanding and to clarify exactly what records he was seeking from the Council. The applicant, to date, has not provided this Office with any submissions addressing these queries.
Essentially, the Council’s position is that it does not hold any further relevant records other than those provided to the applicant. It is important to note that the FOI Act provides for a right of access to records held by FOI bodies. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the appropriateness or otherwise of the absence of certain records. It is also important to note that the test in section 15(1)(a) is whether searches have been reasonable. This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Nonetheless, section 15(1)(a) requires the FOI body to take all reasonable steps to locate relevant records.
It seems to me that the question in this case is whether the Council can extract further information sought by the applicant from its electronic systems in order to provide the applicant with answers to the questions he asked in his request. It also seems to me that the actual transactions that make up the total expenditure on its roads program is recorded on the Council’s financial systems. What is unclear to me is whether this information can reasonably be electronically extracted, in line with the provisions of section 17(4) of the Act, in order to provide the answers sought by the applicant. However, in my view, it is not clear from the information before this Office what precise records the applicant is seeking that have not already been provided to him. As noted above, the Investigating Officer contacted the applicant on number of occasions in an effort to clarify what aspects of his request remain outstanding. However, other than in his initial telephone call with this Office, the applicant has not responded to these requests for clarification about his request.
In the circumstances, having regard to the details of the Council’s submissions, and in the absence of any evidence to suggest that further relevant records exist, or can be electronically extracted from its systems, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of the information sought in this case. I find, therefore, that the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to parts 1-4 and 8 of the applicant’s request on the ground that no further relevant records exist or can be found after all reasonable steps were undertaken to ascertain their whereabouts.
Section 15(1)(b) – Parts 5,6 and 7 of the applicant’s request
Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. Section 15(1)(b) is subject to section 15(4) of the Act, which provides that a body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).
Section 15(4)
The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(b), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.
In its submissions the Council stated that it corresponded with the applicant on 12 February 2024, to inform him that parts 5, 6 and 7 of his request were not in compliance with section 12(1)(b) of the FOI Act and would not be answered as part of the request. In its correspondence with the applicant, the Council stated that should the applicant have any queries or concerns about request, the FOI Officer within the Council could be contacted.
While there is an onus on FOI bodies to assist, or at least offer to assist, requesters (as required under section 15(4), it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward, as requesters may not necessarily be aware of the type, nature and/or location of the records held. However, I note that following the Council’s letter to the applicant on 12 February 2024, notifying him that these parts of his request did not constitute a request under section 12 of the FOI Act, and offering him the opportunity to engage with the Council, the applicant did not respond other than to request an internal review decision. From the submissions provided to this Office for the purposes of this review, it does not appear that the applicant provided any further information which would assist the Council in locating relevant records.
In all of the circumstances of this case, I am satisfied that the Council offered to assist the applicant to amend parts 5, 6 and 7 of his request so that it would no longer fall to be refused under section 15(1)(b) of the Act.
Section 15(1)(b)
The general thrust of the Council’s submissions was that the applicant’s request was too broad and vague. In its submissions to this Office, the Council stated that it took the view that parts 5, 6 and 7 of the applicant’s request sought the opinions of the Authority rather than seeking specific records. It said that in its acknowledgement letter, it advised the applicant that three relevant parts of his request were not in compliance with section 12 of the Act.
In part 5 of his request, the applicant sought an explanation why there has been no increase in the B0402 Local Road budget for over 3 years. In its submissions to this Office, the Council said the Elected Members did not allocate additional funding to this Code in their discussions on the Budgets for the years in question. It said that these discussions and decisions would be recorded in the minutes of the Budget meetings which are available on its website.
In relation to part 6 of the applicant’s request, the Council stated that it provided the applicant with copies of the roads programmes for the years relevant to his request. It stated that it would not be possible to provide a forecast for the additional funding allocated to B0405 Local Roads Maintenance Works as it could be ring fenced for unforeseen contingencies and/or emergency work.
The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the request contains sufficient particulars to enable the records sought to be identified by taking reasonable steps.
I have carefully considered the Council’s submissions and the applicant’s engagement with the Council in relation to parts 5, 6 and 7 of his request. I note that at no stage during the applicant’s engagement with the Council did he seek to clarify what records he was seeking in relation to those parts of his request. In the circumstances, it seems to me that, without any clarification from the applicant, the Council’s interpretation was not unreasonable. In the circumstances, I am satisfied that the Council was justified in refusing parts 5-7 of the applicant’s request under section 15(1)(b) of the Act, and I find accordingly.
Finally, bearing in mind section 12(1)(b) of the Act, I suggest that should the applicant wish to make a new request to the Council for records he deems to be outstanding, he might contact the Council’s FOI Officer for assistance in framing his request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse further records relating to parts 1-4 and part 8 of the applicant’s request under section 15(1)(a) of the FOI Act. I also affirm the Council’s decision to refuse parts 5, 6 and 7 of the applicant’s request under section 15(1)(b) of the FOI Act.
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.
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Richard Crowley
Investigator