Decision
Ms X and South Dublin County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-157550-N6G0M9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157550-N6G0M9
Published on
Whether the Council was justified in refusing access to further records relating to the applicant’s property under section 15(1)(a) of the FOI Act on the grounds that no further records exist or can be found
11 July 2025
This review follows on from a previous review by this Office, case reference OIC-152030-Z4P5Q2, following which I directed the Council to consider the applicant’s request afresh.
In a request dated 30 April 2024, the applicant sought access to all information relating to her property that she leased to the Council, including photos, maps, notes, emails, reports, letters, files and any other communications. On 12 June 2024, the Council part-granted the request with some redactions made under section 37(1) of the FOI Act. On 31 July 2024, the Council affirmed its position that all relevant records had been released to the applicant. The applicant subsequently applied to this Office for a review of the Council’s decision. On 27 November 2024, I annulled the Council’s decision and directed it to consider the original request afresh as I was not satisfied that the Council had undertaken all reasonable steps to ascertain whether any relevant records may be held by a management company commissioned by the Council to manage the applicant’s property.
On 29 January 2025, the Council made a fresh decision to part-release further records found in the scope of the applicant’s original request. The Council redacted a small amount of third-party personal information contained in record 6 under section 37(1) of the FOI Act. It also refused certain information it considered to be commercially sensitive in records 12-14 under section 36(1)(b) of the Act. On 22 February 2025, the applicant requested an internal review of the Council’s decision. She said she believes there is vital information omitted regarding her property and its condition and that she believes numerous photos, records, reports, and compliance certs are missing. The applicant did not contest the redactions made by the Council to the records it released to her. On 13 March 2025, the Council affirmed its original decision. It also explained the searches it had undertaken to locate the records and said that all records have been provided to the applicant.
On 18 March 2025, the applicant applied to this Office for a review of the Council’s decision. She claimed that further information ought to exist and listed various types of records she believes are missing, including records relating to damage to the property, list of works required and completed, compliance certs following completion of works and photographs of the property.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, 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 both the Council and the applicant. 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 to further records relating to the applicant’s property under section 15(1)(a) of the FOI Act on the grounds that no further records exist or can be found.
Section 15(1)(a) provides that an FOI body may refuse to grant a request when the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. 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 record in question.
As noted above, the Council provided submissions to this Office about the searches it undertook to locate the records sought by the applicant, details of which were provided to the applicant. While I do not intend to repeat those details in full here, I confirm 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 provided details of the searches undertaken to locate the records requested by the applicant which were carried out across its Housing Department, by the management company and of its email archives of current and former Council employees. The Council said that hard copy and digital searches were carried out and a range of relevant staff members were consulted across various housing functions to ensure that any records potentially within the scope of the request were identified and considered.
The Council said that staff in the following teams were consulted in the searches: the Housing Leasing team, the Housing Maintenance team, the Housing Procurement team and the Housing Technical staff. It said that the staff confirmed that, following a thorough review of their records, no additional relevant documents were identified beyond those already located and provided in response to the applicant’s FOI request. The Council said it also contacted the management company for any records it holds relating to the applicant’s property. The Council said that a digital file of all records held by the management company was submitted to the Council in response to the request and the company have confirmed that they hold no further records. It said that it released all the records it received from the management company. The Council said it has taken all reasonable steps to locate and retrieve relevant records, including making good-faith efforts to obtain documentation from the management company. It said the manner in which the management company choses to create, manage, or retain records falls within their own internal governance. As such, the Council said it cannot be held responsible for the availability or completeness of records held by an external managing agent.
In its submissions, the Council also addressed each of the areas of records which the applicant has contended are still missing from the records released. The Council stated that it had now released all records it and the service provider hold within the scope of the request. The Investigating Officer provided the applicant with a detailed summary of the Council’s individual explanations of each area of records she contended were missing.
After receiving an update of a summary of the Council’s submissions, the applicant then made submissions of her own. She stated that her lease agreement with the Council was for a discounted market rent value. The applicant said that this rate of market rent should mean that the Council would have more responsibility for anti-social and maintenance concerns, and so this implies that the Council should hold more records relating to its role in this. The applicant also said that she should have received a full list of photographs at the inspection and handover stage from the Council, as well as a full list of works she was required to complete. She also raised concerns about the implications arising from the records released relating to her property. She stated that she is looking for a report that she requires to sell the property regarding the management of the property during the lease period.
The Investigating Officer put these comments from the applicant to the Council and asked if they point to the possibility of the existence of further records within the scope of her request. The Council responded by stating that the rental value of a property does not affect or determine responsibility for any anti-social behaviour during the tenancy. The discount applied to the agreed open market rent reflects the assurance of timely rent payments to owners and the tenancy management services provided by the housing authority or its agent. Thus, the Council said it hods no further records in this regard.
In terms of the photographs and list of works the applicant claimed were still not released, the Council said that all pre- and post-inspection photographs have been released to the applicant. In addition, the schedule of works required following inspections by the Council’s Clerk of Works has also been provided. The Council said that these are contained in records 1-4 and 17 of the records it released following its fresh consideration of the applicant’s request. The Council stated that it does not hold any additional records beyond those already disclosed.
The Council said there is no obligation under the terms of the lease to provide a property management report upon lease expiry. It said that the lease permits the delegation of management functions to an Approved Housing Body, an arrangement that was in effect throughout the lease period. The Council said it has not been requested to furnish such a report for the sale of any other properties post lease. It said it is not standard practice to compile or submit a formal report at the conclusion of such leases.
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. 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 existence of certain records. Furthermore, 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.
In this Office’s previous review of the Council’s decision in case OIC-152030, I remitted the matter back to the Council for fresh consideration as I was not satisfied that the Council had undertaken all reasonable steps to ascertain whether any relevant records may be held by the management company commissioned by the Council to manage the applicant’s property. In processing the applicant’s request afresh, the Council requested and received the records held by the management company and released those to the applicant. While I acknowledge the applicant believes further records ought to exist, and that she may be disappointed by my decision, 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 now taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist or can be found. Accordingly, I find that the Council was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after 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 access to further records 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.
Richard Crowley
Investigator