Decision
Mr. X and The Cork County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-152805-V6C9R3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152805-V6C9R3
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant, his mother, and their home on the basis that no further records exist or can be found
17 April 2025
As I understand it, the background to this case concerns an application made by the applicant/his mother under the Tenant Purchase Scheme to buy their home from the Council.
In a request dated 16 April 2024, the applicant sought all records held by the Council in relation to the council property in question and in relation to himself and his mother. On the same day, the Council informed the applicant that his request was too broad and asked him to clarify what records he is looking for. The Council asked the applicant if he was seeking his Housing file held by its Housing Department. It also asked that the applicant provide a timeframe for the records sought. In reply, the applicant said he is seeking records from 2008-2015 and referenced files he believes were transferred from a Municipal District Council to Cork County Council in 2015. The applicant said he was specifically seeking a letter from the Town Clerk of the Municipal District in relation to his residence. The Council subsequently asked the applicant if he was seeking a copy of the letter he referred to or if he was seeking a copy of his entire Housing file. The applicant confirmed that he was seeking a copy of that letter and any correspondence attached to it relating to himself, his mother, or their property between 2008-2015. He said he believed the letter he was looking for was issued in 2010 by the Town Clerk. He said he also wanted a complete copy of his housing file.
On 11 June 2024, the applicant sought an update from the Council on his FOI request. In an email dated 2 July 2024, a member of the Housing Policy and Management team said that, in reference to a phone call with the applicant that day, she would like to clarify that the applicant was seeking a copy of letters dated 5 May 2010 and 8 July 2010 relating to the property in question as well as a complete copy of the entire housing file. On the same day the applicant responded saying he was seeking access to all records held by the Council relating to himself and his mother dating back to 2008.
In a decision dated 5 July 2024 the Council part-granted the request. The decision maker noted the request was refined on 16 April and 2 July 2024 and specified that the request was directed to the Housing Directorate for processing. The Council redacted certain information from the records under section 37(1) of the FOI Act on the basis that access to the record concerned would involve the disclosure of personal information of an individual other than the applicant and under section 31(1)(a) on the basis that the records concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.
On 22 September 2024, the applicant sought an internal review of the Council’s decision. He said he is seeking copies of email correspondence between senior managers and junior staff relating to his request and copies of notes directly linked to his case such as handwritten diary entries. He also said he is seeking copies of any discussions that took place between a named member of staff [Mr A] and elected representatives connected with his property and “any and all discoverable materials relevant”.
On 11 October 2024, the Council varied its original decision and released additional records it located. In that decision, the Council noted that the Internal Review Unit sought
clarification from the applicant regarding specific records he believed to exist. The Council said further searches were conducted on foot of the clarification it received from the applicant and a number of records were identified which the Council released. The Council concluded that it had no further records, other than those released to the applicant.
On 12 October 2024, the applicant applied to this Office for a review of the Council’s decision. In his application for a review, the applicant said he had not been given copies of emails from a named senior manager [Mr B], who he said was the lead senior manager and decision maker with respect to his dealings with the Council. The applicant made no reference in his application, or subsequent submissions, to the exemptions applied by the Council under sections 37(1) and 31(1)(a).
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions outlining the searches undertaken to locate the records sought and its reason for concluding that it has no further records. The applicant was invited to make submissions of his own, which he 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 referenced above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
While the Council located and released, with some redactions, more than 200 pages of records to the applicant, he maintains that further records ought to exist. Accordingly, this review is concerned solely with whether the Council was justified in refusing access to further relevant records under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found after having taken all reasonable steps to ascertain their whereabouts.
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.
The Council provided this Office with details of the searches it carried out to locate the records sought in this case, details of which were provided to the applicant. While I do not intend to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the Council said that searches were confined to its Housing Directorate based on the correspondence between the applicant and its FOI Office and Housing Directorate, and based on a telephone call with the applicant on 2 July 2024. The Council said a request to search for records was sent to all Housing units. The Council outlined the searches and records it located in its Rent Unit and Tenant Purchase Scheme Unit. It noted that pages 1-102 on the Schedule of Records it provided to the applicant were from the Rent Unit and pages 103-165 were located in the Tenant Purchase Scheme Unit. The Council also said that all records from theTown Council had been transferred to Council. It said that the Housing file for the property in question, which was transferred from the Town Council, was retrieved and released to the applicant with some redactions; pages 166-210 on the Schedule.
The Council provided details of the staff and Units it consulted and outlined the physical and electronic searches it carried out, using the address of the property in question and the names of the applicant and his mother. It said the former Town Clerk in the Town Council was contacted to see if he had any records and he said all records had been transferred to County Hall. The Council said it checked its representations software system and retrieved relevant records. The Council said it consulted the senior manager [Mr B], specifically identified by the applicant, who said that he would have asked his Staff Officer in the Purchasing Options Section regarding the applicant’s tenant purchase query. Mr B said his Staff Officer would have checked both the Housing File that would have initially been received from the Town Council but also the current Tenant Incremental Purchase Scheme legislation and the Staff Officer would have reverted to Mr B verbally.
In response to further queries from the Investigating Officer, the Council provided a response from Mr B in which he said that he wished to reiterate his previous statement regarding searches and discussions that he would have undertaken to search for records related to the request. He went on to say that he commenced in his current position in October 2016 and is the longest serving officer in his section and so all email searches would have been for the period after that date. However, following a subsequent search, Mr B said he identified further records dating from November 2016. The Council said that Mr B searched “All Outlook Items” using the applicant’s name and address as search terms. Mr B said he also located records in the Housing area related to an Ombudsman case regarding repairs to the relevant property in 2020. I understand that these further records have now been released to the applicant with some redactions under section 37(1) of the Act.
As noted above, the Investigating Officer provided details of the Council’s submissions to the applicant and invited him to make submissions. In response, the applicant objected to the Council’s restriction of searches to records held by the housing directorate arguing that he did not make his request to any specific department. He also said that he had again been denied information by Mr B, the senior manager and decision maker who refused his housing purchase application, believing there ought to exist minutes of meetings where he and his household were discussed.
In further submissions to this Office, the Council said there was some confusion on the refinement of the FOI request and provided evidence of email engagement with the applicant and said there were phone calls wherein the applicant requested specific records that would only be found in the housing area. The Council said the records being sought consistently related to the council property and there was never any mention of records outside of the housing directorate. The Council said it previously notified the applicant that the response to his request was from the Housing Unit only and noted that he did not state in any of his appeals that he was looking for records outside of the Housing Directorate or those that were not relating to the council property. The Council said some records transferred to the County Council are stored in an offsite, third party location, but that the applicant’s housing file is held in County Hall. The Council also said the Town Clerk conducted further searches for Town Council meetings from 1998 to 2014 by searching for the applicant’s name and address. The Town Clerk said no reference in any of the meetings in the time period was made to the relevant property. The Council maintains that it cannot identify any further records relating to the applicant’s request.
My Analysis
The applicant maintains that he did not restrict his request to any particular department. However, it is evident in my view from the correspondence between the applicant and the Council that he was clearly seeking records that might reasonably be considered to be held by the Housing Department, such as those related to the application to purchase their council home and renovations to the property. The Council had initially informed the applicant that his request was too broad to process and the applicant offered to narrow his requests for certain pieces of correspondence from named individuals during specific times, as well as to his housing file. I note that when the Council sought clarification of his request, the applicant makes specific reference to employees working in the Housing Department and to his case about purchasing the property. That being said, the final attempt made by the Council to clarify his request resulted in the applicant saying that he was seeking all records pertaining to him and his mother. In essence, this is the same as his first request which the Council had deemed to be too broad to process. The Council then went on to confine its searches to the Housing Department which, in my view, seems reasonable in the circumstances.
At this stage, I think it is worth considering the obligations of both requesters and public bodies under the FOI Act in cases such as this. Section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, while section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests. It seems to me that requests that seek access to all records on a particular matter or subject invariably run the risk of giving rise to disputes in relation to the scope of such requests. However, if an FOI body considers that the wording of a request is unclear or ambiguous, it should consider engaging with the requester to clarify the precise scope of the request. Having considered the applicant’s arguments and the Council’s engagement with the applicant about his request, I am satisfied that the Council’s interpretation that the applicant was seeking records held by its Housing Directorate was reasonable in the circumstances. If the applicant believes that other areas within the Council hold records he is seeking, it is open to him to make a new request for any such records.
In regard to the Council’s efforts to locate the records sought by the applicant, 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 FOI body concerned takes all reasonable steps to locate relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. Having regard to the Council’s submissions 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. Accordingly, while I appreciate that the applicant will be disappointed by my decision, I find that the Council was justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that it was unable to locate any further records having undertaken all reasonable steps to ascertain their whereabouts.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse 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.
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Richard Crowley
Investigator