Decision
Mr. X and Carlow County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-146850-F9Z7D9 and OIC-147427-V7Y7S2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146850-F9Z7D9 and OIC-147427-V7Y7S2
Published on
The applicant in this matter is a company that is represented by a third party, therefore all references to the applicant in this decision should be taken to include correspondence with the applicant’s representative where appropriate. The applicant submitted two FOI requests to the Council for records relating to development contributions. In communications with this Office, he stated that he is happy for both cases to be dealt with in a single decision. Given the subject matter of both requests, I consider it appropriate to deal with both cases together.
In his first FOI request of 24 November 2023, the applicant sought:
a) A copy of the agreement of May 2005 between a named construction company and the Council;
b) A copy of any section 47 agreement relating or attaching to planning permission numbers 06/689 and 07/1148;
c) The value of works actual and estimated covered by the May 2005 agreement and any related section 47 agreement;
d) Details of how development contributions of €6,682.98 each were calculated in respect of house numbers 6 and 7 in the development.
In its decision on the applicant’s request, dated 28 November 2023, the Council refused the request pursuant to sections 36(1)(a), (b) and (c) of the FOI Act. The Council also said the FOI request is refused because the information requested is contrary to the terms of the Data Protection Act 2018 (GDPR) as it relates to third party personal financial information. In his internal review request of 5 December 2023, the applicant said that he was providing correspondence from staff members of the Council which he said confirms that the May 2005 agreement was clearly attached to planning reference 06/689. He also provided correspondence between two members of staff of the Council which he says refers to his clients constructing two dwelling units namely 6 and 7 and paying a cash bond of 5560 per unit and which goes on to recommend refund of the bond to his clients. The applicant said based on this correspondence, he was requesting reviews in relation to parts a), b), c), and d) of his request. In its internal review decision dated 5 January 2024, the Council affirmed its original decision again quoting sections 36(1)(a), (b) and (c) of the FOI Act. On 28 February 2024, the applicant applied to this Office for a review of the Council’s decision.
In his second FOI request of 16 January 2024, the applicant sought the amount of development levies paid in respect of each of the 24 houses in the named housing development which he said was developed by his client under planning reference numbers 06/689 as amended by 07/1148. In a decision on the applicant’s request, dated 24 January 2024, the Council said according to its records the applicant’s client paid development charges in respect of fifteen properties only at the development. It said the applicant has previously been provided with details of the payments made in respect of those fifteen properties. The Council said it is not in a position to provide information in relation to third party financial transactions in respect of any other properties pursuant to sections 36(1)(c) and 37(1) of the FOI Act 2014. In his internal review request of 24 January 2024, the applicant contended that all information, including payments made in respect of a development, is an entitlement of the owner and developer who is his client and he cited a court precedent and the opinion of a Senior Counsel which he said supports this view. On 12 March 2024, the Council affirmed its original decision. On 15 March 2024, the applicant applied to this Office for a review of the Council’s decision.
On 5 April 2024, this Office issued a notice under section 23 of the FOI Act to the Chief Executive of the Council requiring the Council to provide a statement of reasons for its decision in relation to the applicant’s first FOI request. The Investigator stated that the Council’s original and internal review decisions merely listed sections 36(1)(a), (b) and (c) of the Act and no reasons were given as to how each of these provisions of the Act apply to the information that was refused. The Investigator stated that neither decision shows any consideration of public interest factors for or against release of the information at issue in the case. The Investigator also noted that the FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
On 9 April 2024, the Council provided the applicant and this Office with its statement of reasons. The Council said the assertions and suppositions made in the applicant’s FOI request contain multiple factual errors which were clarified in the Council’s original decision of 28 November 2023. It said the applicant’s request can be boiled down to two items a) to provide a copy of the section 47 Agreement of 9 May 2005 and b) to provide details of how development charges were calculated on houses 6 and 7. The Council contended that release of the agreement would involve the disclosure of commercially sensitive and personal information and it refused the agreement under sections 36 and 37 of the FOI Act. It said development charges in respect of houses 6 and 7 were not paid by the applicant’s client, it stated that the vendors of houses 6 and 7 have not consented to release of the information to the applicant and it refused this information under section 36 of the Act on the basis that it is commercially sensitive.
Following receipt of the Council’s statement of reasons, the applicant informed this Office that he had obtained a copy of the 2005 Agreement and he was no longer requesting this record. The applicant contended however that the 2005 agreement was amended to include planning permission 06/689 which was subsequently altered by planning permission 07/1148. The applicant said this contention was based on correspondence issued by members of staff of the Council which he provided to the Council and to this Office during the course of the review. The applicant later confirmed that he was agreeable to limiting the scope of his request to the issue of whether the Council was justified in refusing access to further records attaching the 2005 agreement to planning permissions 06/689 and 07/1148. This Office wrote to the Council and provided it with an opportunity to provide focused submissions. The Council provided focused submissions in support of its decision and this Office provided the applicant with an update in relation to the Council’s submissions.
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 submissions made to date. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified in refusing access to further records concerning any section 47 agreement relating or attaching to planning permission numbers 06/689 and 07/1148.
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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 was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office’s website at www.oic.ie).
The applicant says his client purchased a site from a construction company that had gone into liquidation. He says the construction company had entered an agreement with the Council in May 2005 which provided that the company would build a road and a bridge and other services in connection with the development and in return the Council would offset development contributions owing in respect of the houses built by the company. The applicant says he has obtained a copy of the Agreement of May 2005 and he accepts that it refers to planning references 04/854, 04/856 and 04/862. He says, however, that these earlier permissions were never actioned and what happened is that the 2005 agreement was in fact transferred to these later permissions 06/689 and 07/1148. He says that his client eventually built the houses in this development. He says that his client was required to pay approximately 270,000 by the Council in respect of development contributions in respect of these houses and he contends that the Council was not entitled to require his client to pay this contribution as the construction company had already satisfied the conditions in relation to the payment of contributions by building the roads and the bridge etc. The applicant argues that its clear from correspondence from staff of the Council, that the 2005 agreement was transferred to permissions 06/689 and 07/1148. The applicant has provided this Office with a letter dated 15 June 2009 from the Acting Director of Housing and Transport in the Council to a named Solicitor which states:
“Re Development at (named location). Developers – (named company). Public Private Partnership Agreement… In relation to the specifics of your letter I wish to respond as follows in respect of planning reference 06/689: Development Levies: Arising from the agreement dated May 2005 between Carlow County Council and – (named company). – (named company) have through this agreement complied in advance with conditions 19, 21, 22 and 23 of the planning permission. Requirement for a bond: The infrastructure the subject of the aforementioned agreement between Carlow County Council and (named company) has now been provided by (named company). Arising from this there is no requirement for a bond to ensure satisfactory completion of the roads and services, therefore planning condition 24 does not apply. Part v obligations: The aforementioned agreement between Carlow County Council and (named company) made provision for the Part V obligations of the developers in that an increased financial burden was imposed on (named company). Having regard to that condition 1 has been satisfied by (named company).”
The applicant also provided a letter dated 23 March 2010 from the Acting Director of Housing and Transport in the Council to a named Solicitor which states:
“Re Planning Reference 06/689 – Planning permission for 19 No dwelling units at (named location). I refer to our telephone conversation of this morning on the matter of condition No 20 of the said grant of permission. Having regard to the agreement between Carlow County Council and (named company) signed on the 6th May 2005, the cost of constructing the road and bridge, and providing the services within the road and which was undertaken by your clients (named company) was defrayed against development levy contributions. In this regard the condition 20 which is in respect of capital water contributions forms part of the agreement. In light of that I wish to confirm that per the said agreement your client has complied with condition 20.”
The applicant argues that it is clear from this correspondence and from the actions of the Council in not applying the conditions of the planning permissions by not requiring a completion bond, a part V agreement or payment of contributions, that the 2005 agreement was attached to 06/689. The applicant argues that all the material such as minutes, memos and correspondence which relates to the attaching the 2005 Agreement to planning permissions 06/689 and 07/1148 form part of the agreement and falls within the scope of part b) of his request and these records should have been provided by the Council. The applicant says he is looking for any records which relate to the attaching of the 2005 agreement to the later permissions and argues that the Council must have such records.
In its submissions to this Office, the Council says it has dealt with a series of FOI requests and appeals to the OIC in relation to this matter and has endeavoured to fully address same within the provisions of Section 15(1)(a) of the Act and having regard to the fact that the subject matter involves a number of third parties and has already been determined by the Courts. The Council says the 2005 Agreement did not make provision for the transfer of development credits to other parties. It says the applicant’s client has no entitlement to the development credits and was not a party to the 2005 Agreement. The Council says this matter was addressed some years ago in correspondence between the Council’s solicitors and solicitors acting on behalf of the applicant’s client. The Council says that following bankruptcy proceedings, all rights and obligations under the 2005 Road Agreement novated to the Official Assignee (Insolvency Service of Ireland) and are the subject of an Order of the High Court.
It is clear from the submissions to this Office that there is a dispute between the parties in relation to the issue of whether or not development credits transferred from the 2005 agreement to planning permissions 06/689 and 07/1148. The Council states that this and related matters have been the subject of protracted legal proceedings before both the Circuit Court and High Court. It states that the applicant appears to be endeavouring to have the OIC adjudicate on a matter which has already been determined by the Courts and subject to Orders of the Courts. It is important to note, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Therefore, the issue of whether or not the Council was entitled to require the applicant’s client to pay certain development contributions is not a matter that I can adjudicate on.
The question I must consider in this case is whether the Council has, at this stage, taken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. In the request for focused submissions, the Investigator outlined the revised scope of the request and the applicant’s contention that further records ought to exist. He also referred the Council to extracts from the correspondence provided by the applicant and queried whether this correspondence indicated the existence of further records as contended by the applicant. The Council did not address the specific queries put to it by this Office in relation to this correspondence. This Office also asked the Council about the steps it had taken to search for records within the scope of the review. In particular, the Council was asked to provide details of the exact locations or areas which were searched for the records sought in this case. It was asked to describe any searches which were conducted of files in such locations or areas including details of the files searched. The Council was asked whether relevant individuals were consulted and whether their records were searched. While the Council sought additional time in which to reply to the request for submissions, it did not address the queries put to it in relation to searches conducted in this case.
In the circumstances of this case, I am simply not in a position to find that the Council has undertaken all reasonable steps to locate the records sought. Having considered the matter carefully, I consider the appropriate course of action is to annul the Council’s effective reliance on sections 15(1)(a) in refusing access to further records within the scope of part b) of the applicant’s request on the basis that they do not exist and to direct it to undertake a fresh decision making process in respect of this part of the applicant's request, in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary. I strongly recommend engagement between both parties before the Council considers this part of the request afresh with a view to clarifying the precise nature of the records sought. Indeed, such engagement would also provide an opportunity for the applicant to clarify the nature of the records he was seeking at part b) of his request.
Finally, I also note that in its submissions, the Council states that it continues to receive FOI requests from two requestors acting in concert and these requests are now in the opinion of the Council becoming frivolous or vexatious within the meaning of Section 15(1)(g) of the Act. It states that it has received a series of FOI requests and appeals to the OIC on this matter. The Council did not rely on section 15(1)(g) in its original or internal review decisions or in its statement of reasons. I note that there are three applications to this Office listed under the applicant’s name, this Office annulled the Council’s decision in two of these cases and the third case did not proceed to decision. I am not satisfied that the Council has provided the submissions, information and evidence required to justify a finding that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the FOI Body appear to have made the requests acting in concert. I find that the Council was not justified in refusing the requests under section 15(1)(g) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified in refusing access to records coming with part b) of the request under section 15(1)(a) of the FOI Act on the basis that I am not satisfied that the Council took all reasonable steps in an effort the ascertain the whereabouts of relevant records. I annul that part of the Council’s decision and I direct it to conduct a fresh decision making process on part b) of the request.
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.
Jim Stokes
Investigator