Decision
Mr. X and Louth County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152311-Q6W6N6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152311-Q6W6N6
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records relating to public works carried out by the Council in a particular area, on the ground that the records sought cannot be found or do not exist
20 March 2025
In a request dated 23 April 2024, the applicant requested details of all public works, permissions and/or tenders carried out by the Council relating to the area of Bryanstown cross route between the roundabout on said route West to the Blackbush Lane junction between September 2014 and May 2017. On 17 May 2024, the Council refused the applicant’s request under section 15(1)(a) of the FOI Act as it could not locate the records sought. On 22 May 2024, the applicant sought an internal review of the Council’s decision. He said that several witnesses confirmed to him they recall major public works took place during the period set out in his request.
On 5 July 2024, the applicant wrote to this Office as he had not received a reply to his request for internal review. On 19 July 2024, following contact from this Office, the Council wrote to the applicant affirming its original decision. The Council said that it had attempted to contact the applicant to ascertain more specific details regarding the nature of the public works concern. The Council stated that a review of google earth images for the location identified in the applicant’s request shows certain clearance works had taken place between the time period specified in the applicant’s request, however the Council said that it understood these works were on private lands rather than public works. On 25 September 2024, the applicant applied to this Office for a review of the Council’s decision.
On 11 October 2024, the Council informed this Office that it released five records to the applicant on 19 September 2024 following clarification on the exact works of interest. The Council said that while the records released relate to works that took place outside the timeframe of the applicant’s request, it was happy to facilitate the applicant with the release of said documents.
On 28 November 2024, the Investigating Officer contacted the applicant to clarify what records he is seeking. The applicant said he is seeking records of works carried out in the relevant area prior to July 2016. During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined its reasons for concluding that further records relating to the applicant’s request do not exist or cannot be found. The applicant was invited to make further submissions, which he duly did. Following his submissions, the Investigating Officer sought additional submissions from the Council, which are outlined below.
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 both parties. 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 refusing access, under section 15(1)(a) of the Act, to records relating to public works at the location set out in the applicant’s request between September 2014 and May 2017, on the ground that no such records exist or can be found.
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 the 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 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.
As I have outlined above, the Council provided this Office with submissions detailing its reasons for concluding that no further records exist in this case, the details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have regard to the them for the purposes of this review.
In its submissions to this Office, the Council said that subsequent to the issuing its decisions on the applicant’s request, it received some clarity from the applicant via this Office which assisted in facilitating a more targeted search of its records and that this resulted in the release of five records outside of the FOI process on 19 September 2024.
In its submissions, the Council said that a search was carried out using the keyword search “Bryanstown” and “Blackbush Lane” on both electronic and hardcopy filing systems pertaining to Roads Operations. It stated that this keyword search did not identify any files pertaining to these keywords. The Council stated that files pertaining to the types of works which are the subject of the applicant’s request, can be maintained both electronically and manually. It also said that in terms of tendered work, there is a requirement on the Council to retain such files for a minimum period of seven years. The Council stated that District Engineering staff for the Drogheda area (past and present) were consulted to ascertain if they were aware of any works being carried out during the relevant time period. It stated that the District Engineering Staff had no recollection of any works being carried out during the time period referred to in the applicant’s request.
The Council said that following the clarification it received regarding the applicant’s request, it extended the search of its filing system to its Infrastructure Section of the Council, which identified a number of records that it released to the applicant. These included records relating to reconstruction of footpaths at Blackbush, a road opening licence for works on Blackbush Lane in 2017 and Planning Reports relating to works at Blackbush Lane from 2016 and 2018. In relation to the Planning reports, the Council said that these reports are available to the public via the Planning Application File/online Planning Portal and are therefore public records. It said the reference to maintenance works in the Planning Report pertains to the applicant who is seeking planning permission, and conditions thereof that may be applied, should the development be granted permission and proceed to development. The Council said it would not have any records relating to any such maintenance works. In any event, the Council noted that both planning applications were subsequently withdrawn.
As outlined above, the Investigating Officer provided the applicant with a summary of the Council’s submissions, and offered the applicant the opportunity to provide submissions. In his submissions the applicant maintained that works did occur in the area referred to in his request. He additionally asked a number of questions regarding ownership of a land folio which includes a section of public footpath and road, who carried out the works, whether planning permission was sought in relation to these works, as well as questions regarding liability cover and post completion inspections.
Following the applicant’s submissions to this Office, the Investigating Officer sought further submissions from the Council regarding the use of temporary traffic lights and its consultation with District Engineering staff in Drogheda. In its submissions the Council stated that as “temporary traffic lights” did not form part of the original request or the subsequent appeal, no searches were carried out specifically in relation to temporary traffic lights. It said that all relevant records in relation to road maintenance are held in the Place-making and Physical Development Directorate and its storage facilities. It stated that given the nature of the original FOI request, records pertaining to same are held within the Directorate and the search was contained to the Directorate. The Council said the majority of the Placemaking and Physical Development Directorate is located in the civic offices of the Council in Dundalk. It stated that the technical staff who deal with works carried out in south Louth are based in the civic offices in Drogheda. It stated that these technical staff were consulted to see if they could recall works with the scope of the applicant’s request. The Council said that the feedback received was that they had no recollection of any works being carried out during the related period between September 2014 and May 2017.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought or might exist.
Furthermore, while the applicant raised a series of questions in his submissions to this Office, it is important to note that the purpose of the FOI 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. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI 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. It is open to the applicant to make a new request to the Council about any records it may hold concerning the land folio in question or other related matters, should he wish to do so.
Having regard to the explanation given by the Council as to why no further relevant records exist or can be found and to the details of the searches actually undertaken, including the consultation of relevant staff members and the use of keyword searches, and in the absence of evidence to suggest that further relevant searches might be warranted, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that it was justified in refusing, under section 15(1)(a) of the Act, access to any further relevant records other than those already released.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision, under section 15(1)(a) of the FOI Act, to refuse the applicant’s request after having taken all reasonable steps to ascertain the whereabouts of the such sought.
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