Decision
Ms. Y and Dublin City Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-161892-H9R6F6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161892-H9R6F6
Published on
On 17 March 2025, the applicant made a request to the Council for any records related to drainage complaints made concerning her address from 2000 to the present, with particular regard to a summons issued in 2000. The applicant said her request included, but was not limited to, any reports, correspondence, complaints, or other relevant documentation related to the drainage issues in the area and the summons. On 11 April 2025, the Council refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no relevant records could be found. On 28 April 2025, the applicant requested an internal review of the Council’s decision. On 16 May 2025, the Council affirmed its original decision and provided a summary of the searches it undertook to locate the records sought. On 12 August 2025, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, the Council provided submissions to this Office with details of the searches it said it had undertaken to locate the records sought, details of which were provided to the applicant who was invited to make her own submissions, which she duly did.
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 applicant and the Council. 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, under section 15(1)(a) of the FOI Act, in refusing access to records related to drainage complaints concerning the applicant’s address from 2000 to the present, including a summons issued in 2000, on the ground that the records sought cannot be found or do not exist.
Section 15(1)(a) of the 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. The role of this Office 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 to 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 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.
The applicant provided some background to her request in her submissions to this Office. She said she received a summons from the Council sometime in the period 2000-2002. She said that this summons was delivered to her house by an unknown person. According to the applicant, the summons was based on a complaint that there was a sewage blockage on her property, which she had failed to clear. She explained that she is no longer able to locate the summons. The applicant also claimed that, following receipt of the summons, she made two phone calls to the Council but that she heard nothing more from the Council about the matter.
As noted above, details of the Council’s submissions were provided to the applicant. While I do not intend to repeat those details in full here, I confirm that I have had regard to them, and to the submissions made by the applicant, for the purpose of this review.
In its submissions to this Office, the Council stated that records relating to drainage would generally be held by its Environment and Transportation Department. According to the Council, without further details as to the exact nature of any drainage issues at the applicant’s property, it was considered appropriate to conduct a wide search of any records held by multiple sections within the Environment and Transportation Department Drainage Division. As such, the Council outlined how officials and engineers in the Drainage Maintenance/SLA Unit, Drainage Planning, Flood Defence Unit and Pollution Control conducted searches of their personal files and records and section files but that no reference to or record of correspondence or a summons that relates to the applicant, her address or the location generally could be found. The Council went on that say that it contacted an existing and a retired inspector, both of whom worked in drainage in that area at that time, but that neither have any recollection of drainage issues at the location. The Council further explained that this division does not hold general records of the type requested from that period in physical form in local storage or in archived off-site storage. The Council said that there is no electronic version of these records and that, if any records regarding the matter had been held, they have since been destroyed.
The Council said that it also contacted the relevant Area Office in relation to the matter. According to the Council, the Area Office confirmed that, as the property is a private residence, the Council would have no authority over the property, and it would not expect to hold any records. Nevertheless, the Council said that a search was carried out on the Area Office’s shared drives but that no records were located. Furthermore, the Council stated that if there had been any records of complaints made about the property in the early 2000s, the Area Office would not expect to hold same now due to the passage of time. The Council further explained that the Area Office does not hold physical/paper records from the early 2000s and that records of such general correspondence are kept for a period of seven years. The Council went on to say that if any records regarding the matter had been held, they have since been destroyed.
Finally, the Council stated that, as the request referred to a summons, which is a legal document, its Law Department was also requested to conduct appropriate searches. The Council explained that the Law Department uses the Keyhouse File Management System and that all correspondence generated by the Law Department is retained on this system. The Council said that searches were run on all open and closed files for references to the applicant and her address, but that no files were located. According to the Council, the Law Department does retain physical records from the period in question, but that such records have a corresponding file on its Keyhouse management system. According to the Council, in this case there is no record of any relevant file on the management system and therefore there is no corresponding physical file. The Council explained that, if files had been held, they would have been destroyed in line with the relevant retention policy which directs that files are held for seven years from completion of the matter.
The Council concluded that, given the passage of time, it is difficult to state with absolute certainty that correspondence or a summons did not exist at one time, but that, following extensive searches, it is evident that any relevant records do not now exist.
The applicant said that the complaint at the basis of the summons she claims to have received was that there was a blockage on her property which she had failed to clear. According to the applicant, the summons was delivered into her letterbox by an unknown lady sometime in approximately 2000-2002, shortly after there had been a disagreement with a neighbour concerning the rodding of sewers. In her application to this Office, the applicant stated that it was completely unacceptable that she had been informed by the Council that no record of the summons or its contents existed. When provided with the details of the Council’s searches, the applicant expressed dissatisfaction. She further stated that, in her view, a former Council employee had issued the summons without the Council’s knowledge. She queried whether the Council could confirm if, from the names of the individuals she had provided, either these individuals or a relative had worked for the Council. The applicant finally claimed that when representatives of the Council’s planning department came to view a neighbour’s fence, these representatives were aware of the complaints regarding drainage.
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, or are known to have existed in the past, 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 ought to exist or did exist.
This Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally. As such, the applicant’s comments about the motive or the identity of individuals who she believes may have initiated the complaint and summons are not matters this Office can examine. The only question I must consider in this case is whether the Council has taken all reasonable steps to locate the records she sought. I am satisfied that it has.
As noted above, the Council has provided details of the searches it said it carried out for the records requested by the applicant and maintains that, although such records may once have existed, they no longer exist. For her part, the applicant has expressed dissatisfaction with the results of these searches but has not pointed to any specific shortcomings in the searches carried out. In its efforts to find these records, the Council consulted three separate divisions and has provided details of the searches carried out, as well as an explanation about its record management and retention practices.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records exist or can be found. Accordingly, I find that the Council was justified in refusing access to the records sought by the applicant under section 15(1)(a) of the Act on the basis that the records do not exist or cannot be found all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in refusing the applicant’s request under section 15(1)(a) 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