Decision
Mr. X and Galway County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-156853-L0T0W2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156853-L0T0W2
Published on
Whether the Council was justified in refusing access to further records sought by the applicant relating to a proposed graveyard, under section 15(1)(a) of the FOI Act, on the basis that no further records exist or can be found
20 June 2025
In a request dated 30 September 2024, the applicant sought access to:
a) All communications between the Council and the landowner of a proposed graveyard site
b) All communications between the Council and the personnel who carried out the trial hole works
c) All records that passed between Council employees that discusses or mentions risks, concerns or potential problems regarding the project
d) All records that passed between the Council and any other party that discusses or mentions risks, concerns or potential problems regarding the project
e) All records related to the project that the Council does not intend to make publicly available during the planning process.
On 28 October 2024, the Council part-granted the applicant’s request. It refused part A of the request under section 35(1)(b) claiming release of the record it located would be a breach of a duty of confidence provided for by provision of an agreement. The Council released one record relating to part B and said records relating to parts C, D, and E do not exist. On 5 November 2025, the applicant requested an internal review of the Council’s decision to refuse part A of his request. He said he believed the reason behind the decision to use a certain road to access the graveyard is contained within correspondence between the landowner and the Council. On 29 November 2024, the Council refused access to further records under section 15(1)(a) of the FOI Act. On 24 February 2025, the applicant applied to this Office for a review of the Council’s decision. He said he does not believe there are no emails, letters or contracts between the Council and the landowner about the matter.
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 as outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, the Council said that the record it withheld under section 35(1)(b) of the Act related to a draft heads of agreement and contained a confidentially clause for both parties. The Council said this record does not contain the reason for the decision sought by the applicant. The applicant contends that further records ought to exist between the Council and the landowner.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access to further records relating to part A of the applicant’s request on the basis that no further records exist or can be found.
It is important to note that Section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant’s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as genuine public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest (not relevant in this case for the reason outlined below).
Section 15(1)(a)
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.
This Office sought submissions from the Council about the subject records it considered when processing the applicant’s request. The Council said it refused one record in respect of part A of the applicant’s request, a draft heads of agreement between it and the landlord as it contains a confidentially clause for both parties. The Council went on to say that the applicant’s request for an internal review narrowed the scope of the request to the reason behind the decision to use a certain road to access the graveyard. The Council said the record it refused under section 35(1)(b) does not relate to this matter and there is no such record in existence. The Council also said that the graveyard project had now progressed to the planning stage and that the full suite of documents that make up the planning application would be available for public viewing until 15 May 2025.
In his request for submissions to the Council, the Investigating Officer asked the Council to provide details of the searches it had undertaken to locate the records sought by the applicant. While the Council said that the records sought by the applicant in his internal review request do not exist, it did not provide any details of the searches it carried out to locate records relating to Part A of the request. The Investigating Officer subsequently reiterated his request for submissions on the searches carried out by the Council. However, to date, this Office has not received any details from Council about the searches undertaken to locate any relevant records, or indeed why it concluded that no further records exist relating to part A of the applicant’s request.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the information sought was justified.
Given the circumstances outlined above, it is not possible for me to conclude that the Council has taken all reasonable steps to identify all relevant records that it may hold. The Council has not addressed the applicant’s contention that further records ought to exist or provided any details in relation to the searches which were conducted to address the applicant’s request. It seems to me that the Council took the view the record it refused under section 35(1)(b) of the Act does not contain the information sought by the applicant. However, it has not addressed the possibility that further records of communications between the Council and the landowner might exist that contain the information sought by the applicant about the reason to use the road in question to access the graveyard. While the Council claims no such records exist, it has not provided an explanation as to how it reached this conclusion, other than saying that the record it refused in relation to part A of the applicant’s request does not contain this information.
Having considered the matter carefully, and in the absence of details about the searches undertaken by the Council to locate all relevant records relating to part A of the applicant’s request, I am simply not in a position to find that the Council was justified in refusing access to further relevant records. In the circumstances I consider the most appropriate course of action is to annul the Council’s decision under section 15(1)(a) of the Act to refuse access to further records coming within the scope of part A of the applicant’s request. I direct the Council to undertake a fresh decision-making process in respect of part A of the applicant’s request. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s new decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find the Council was not justified in refusing access to further records relating to part A of the applicant’s request under section 15(1)(a) of the Act and I direct it to consider that part of the applicant 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.
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Richard Crowley
Investigator