Decision
Mr. X and Kildare County Council
From Office of the Information Commissioner (OIC)
Case number: 140007
Published on
From Office of the Information Commissioner (OIC)
Case number: 140007
Published on
Whether the Council was justified in its decision to part-grant a request for records relating to searches carried out by the Council for a named folio of land under sections 10(1)(a) and 22(1)(a) of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, authorised by the Information Commissioner to conduct this review
On 30 August 2013, the applicant submitted a request to the Council through his legal representatives for access to four categories of records, one of which related to property searches carried out on the Council's behalf concerning a specified Land Registry folio number, while the remaining three categories generally related to requests to the Council for information concerning the ownership and planning status of that folio.
The Council issued its decision to the applicant on 26 September 2013. In response to the first category of the applicant's request, the Council released a record which had been partially redacted on the basis of 22(1)(a) of the FOI Act. The Council refused access to the other records requested under section 10(1)(a) of the FOI Act. The applicant requested an internal review of this decision on 1 October 2013. On foot of this request the Council released further information contained in the single record released to the applicant following his request, which had previously been redacted. The original decision regarding the other categories of records was upheld. On 6 January 2014, the applicant applied to this office for a review of the Council's decision. Further searches for records relating to the applicant's request were carried out by the Council during the course of this review and an additional record was located, which was released to the applicant on 7 April 2014.
I note that Mr David Logan of this Office informed the applicant on 4 April 2014 that in his view the decision of the Council to redact information from the released record was justified and that he also accepted the Council's decision that it could locate no further records relating to the request. On foot of this preliminary view the applicant, through his legal representatives, outlined his dissatisfaction with this and queried why a number of additional search terms had not been employed by the Council in carrying out its searches. Mr Logan requested that the Council carry out searches utilising these terms. The Council informed this Office on 9 May 2014 that following this additional search no further records relating to the applicant's original request were found. Further enquiries were made to the Council on 16 July 2014 regarding issues around the searches carried out for records, to which the Council responded on 25 July 2014. No further records were located on foot of these enquiries.
I now I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to the Council's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Council, to the provisions of the FOI Act, and to the records released to the applicant, copies of which were furnished to this Office for the purpose of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
This review is concerned solely with the question of whether the Council was justified in deciding to refuse access to the redacted portion of the released record under section 22(1)(a) of the FOI Act and in deciding that no further relevant records exist or can be found.
I will refer to each element as per the numbering in the original request from the applicant.
Category 1
The first category of the applicant's request was for:
"Details of who requested, and for what reason, the certified copy of the named folio, printed 28 July 2011, supported by all written records of the request for the carrying out of the searches for such folio."
On foot of this request the Council released a copy of a letter from the Council's legal representatives to the Director of Services dated 27 July 2011. Certain information was redacted from this letter under section 22(1)(a) of the FOI Act.
Section 22(1)(a)
Section 22(1)(a) provides that a public body shall refuse to grant a request for a record if access to that record would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
In this case the record contained information relating to the searches carried out in the Land Registry by the legal representatives of the Council in relation to the lands in the specified folio, as well as matters arising from those searches. I note the applicant's submission that a mere request for a Land Registry search and the factual basis for same cannot be the basis for an assertion of legal professional privilege. However the redacted portion of the record contains advice given to the Council by a legal professional. Having examined the redacted portion of the record, I am satisfied that it contains a confidential communication made between the Council and its professional legal advisers for the purpose of obtaining and/or giving legal advice. Therefore I find that the Council was justified in finding that the redacted portion of the record is exempt from release under section 22(1)(a) of the FOI Act.
Section 10(1)(a)
The Council claimed that no further relevant records could be located, and thus relied on section 10(1)(a) of the FOI Act, which provides that a request for access to a record may be refused if 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 cases 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 were reasonable. This Office's understanding of its 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 this Office's website,www.oic.ie).
Aside from detailing the general searches carried out, which are set out below, the Council stated in its submission to this Office that the Acting Director of Service had confirmed that he received a verbal request from a named commercial entity to identify potential sites for car parking and/or construction compounds required to facilitate construction at that organisation's campus, and that certain lands were identified in this regard.
The Council submits that a verbal request was made by the Council to its legal representatives to undertake a search at the Property Registration Authority to establish the ownership of this land. The named commercial entity also asked the Acting Director of Service to inform the IDA of any ownership details discovered on foot of these searches. I understand that correspondence from the Council's legal representatives and the IDA in relation to this matter has been released to the applicant previously.
The position of the Council, therefore, is that these requests were made verbally and as such no records were created in relation to them apart from the correspondence from the Council's legal advisers to the Acting Director of Service dated 27 July 2013 which has already been released to the applicant in redacted form on foot of his original request, and has been considered above.
I note that Mr Logan, having considered the records furnished to him for the purpose of this review, found that a particular project code name was used in correspondence by the Council in relation to the lands at issue. Following a request from Mr Logan, further searches were carried out by the Council on all relevant files utilising this particular code name, but no records relevant to the applicant's request were located.
The applicant is of the view that further records ought to exist in this case. In implementing the terms of the FOI Act with regard to access to requested records, the Information Commissioner is concerned only with ensuring access to extant records in accordance with the provisions of the Act. The FOI Act does not provide for a right of access to records which ought to exist. Having carefully considered the matter, and having regard to Mr Logan's thorough investigation of the matter, while it is somewhat surprising that no relevant records have been located, I nevertheless have no basis upon which to doubt the Council's submissions. Accordingly, I find that section 10(1)(a) of the FOI Act applies to any further records coming within scope of the first category of the applicant's request.
Categories 2 - 4
The remaining three categories sought by the applicant in his request were as follows:
"Copies of all requests to the County Council, whether in writing or noted in writing, for all information concerning the ownership of the lands comprised in the folio."
"Copies of all other requests made to the County Council, whether in writing or noted in writing, concerning the said lands, their planning status, development status or otherwise."
"Confirmation as to whether any such requests were made by entities other than the IDA, and if so, whom, providing copies of such records."
The Council refused access to these categories of records under section 10(1)(a) of the FOI Act. I have set out above the relevant provisions and approach taken by this Office where a FOI Body has sought to rely on this section.
In a submission to this Office the Council has outlined the searches carried out by it for the records requested. The Council submits that searches of hard copy and electronic records were conducted in the following departments:
Environment Department - General correspondence files were searched manually for records coming within the scope of the applicant's request. No records were located.
Housing Department - A digital search was carried out in the Property Interest Register for any notes relating to the site at issue using certain keywords, details of which have been provided to the applicant by Mr Logan. Queries in relation to particular pieces of land would generally be made to this department if it was related to a particular housing development or housing land. The land at issue here does not fall into this category as no housing or development land was identified in the vicinity of these particular lands.
Planning Department - Digital searches were carried out on files on requests for Planning searches, requests in relation to planning status and development status using the above-mentioned keywords. In addition the officer responsible for administration of such queries and the executive technician who conducts the searches were consulted. This particular unit does not hold property ownership details and as such any enquirer requesting such information would be directed to the Property Registration Authority. The majority of queries relating to the planning status of particular pieces of land would be made through the Council's online planning enquiries system. It should also be noted that, subsequent to enquiries from this Office further searches were carried out of this Department which included consultations with the Senior Planner and a further record was located. The Council has released this record to the applicant.
Water Services Department - This Department would have retained and processed a query on ownership of land only if that land was in some way connected to or associated with a water/sewage/flood relief scheme. However no such scheme was identified in the vicinity of land at issue.
County Manager's Office - The County Manager's correspondence file was searched (electronically) using the above-mentioned keywords and no records relating to the request could be located.
The Council has also confirmed to this Office that searches were undertaken to ascertain if records relating to the applicant's request were held by the Council's legal representatives and no further records were located on foot of these searches.
The position of the Council with regard to requests 2 - 4 is that it cannot find any further records appropriate to the applicant's FOI request. Accordingly, having reviewed the steps taken to locate the records, I am satisfied that the Council has taken all reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies to these particular requests.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, 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 from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator