Decision
Mr H and Mayo County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120282
Published on
From Office of the Information Commissioner (OIC)
Case number: 120282
Published on
Whether the Council was justified in its decision to refuse access to records under section 10(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
8 April 2014
On 31 July 2012, the applicant wrote to the Council seeking records in relation to the Jackie Clarke Archive. The applicant listed ten categories of records which he was seeking from the Council.
The Council wrote to the applicant on 31 August 2012 informing him of its decision to grant his request and attached a copy of the records. On 24 September 2012, the applicant sought an internal review of the Council's decision. On 16 October 2012, the Council issued its internal review decision to the applicant and released further records to the applicant at that time. Subsequently, on 31 October 2012, this Office received a request from the applicant to review of the Council's decision on his FOI request. The applicant contends that the Council has not released all relevant records coming within the scope of his FOI request.
During the course of this review further records were released by the Council to the applicant I note that Mr Richard Crowley, Investigator, wrote to the applicant on 29 November 2013 outlining his preliminary views on the matter and inviting the applicant to comment on his views. In his reply to Mr Crowley dated 11 December 2013 the applicant raised two issues about the employment contract and remuneration of the archive's curator which he considered to require further explanation. This Office wrote to the Council on these two outstanding items and the Council subsequently released further information to the applicant about the curator's contract and provided clarification concerning the curator's remuneration. Mr Crowley wrote to the applicant on 5 February 2014 with details of the reply he received from the Council. The applicant made a further submission to Mr Crowley on 17 February 2014 expressing his dissatisfaction with the manner in which the Council handled his FOI request and claimed that it is necessary to further probe the curator's remuneration. Mr Crowley replied to the applicant on 20 February last, explaining that the FOI Act makes no provision for public bodies to provide clarification or to answer follow-up queries on records released under the Act and suggested that it may be possible for the applicant to clarify his query about the curator's remuneration with the Council outside the scope of this review. Having addressed the issues raised by the applicant with the Council which come within the scope of this review and after considering the responses provided by the Council, Mr Crowley informed the applicant of his view that section 10(1)(a) of the Act applies. No further response was received from the applicant. I now consider it appropriate to conclude the matter at this time by way of a formal binding decision.
In conducting my review, I have had regard to details of the submissions of the Council, to correspondence between the applicant and the Council and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the records sought by the applicant under FOI, on the grounds that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 10(1)(a) of the FOI Act provides as follows:
"(1) 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 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).
Details were provided by the Council in its submissions to this Office of the searches it had undertaken in an effort to locate the records requested by the applicant. The Council stated that a very small group of personnel deal with the Jackie Clarke Collection and that records relating to the Collection are only held in certain areas within the Council. In relation to the records sought by the applicant, the Council explained that searches were carried out in Mayo County Library, the Jackie Clarke Library and in the Council's Finance Section, Corporate Affairs Section and Human Resources Section.
During the course of this review this Office sought details from the applicant about the parts of his request which he deemed the Council had not addressed. Following correspondence with the Council on matters raised by the applicant further records were released by the Council to the applicant. Having considered the applicant's submissions to this Office and the further steps taken by the Council to address those matters, I concur with Mr Crowley's preliminary view that the Council was justified in deciding that no further records exist or can be found which come within the scope of the applicant's FOI request. 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 decision of the Council in this case.
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 after notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator