Decision
Mr Y and Cavan County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150212-F9B2P9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150212-F9B2P9
Published on
19 December 2024
Early in 2012, Cavan County Council became aware of an issue with effluent from a sewage system disturbing a number of burial plots at a named cemetery. The Council directed the parish to rectify the issue which included the installation of a new pump sump and pipes leading to a new, raised percolation area some distance away from the burial plots. The works were completed and signed-off on by the Council. However, the applicant believed a new, concrete septic tank was placed in among the graves which he said likely damaged them, and should not have been done or signed off on.
In a request dated 18 October 2023, the applicant sought access to all records from the Planning section of Cavan County Council pertaining to the installation of a sewage tank and pipes circa August 2012 at the named cemetery. In a decision dated 14 November 2023, the Council purported to grant the request and released a number of records. On 22 December 2023, the applicant requested an internal review of that decision as he considered the release of information to be inadequate. He said the reply and records contained no information on how or why a concrete septic sewerage tank was dug into the existing graves in 2012. On 11 January 2024, the Council varied its original decision and said it was now including all records held by it in relation to the FOI request, with only personal information redacted. In total it provided copies of 16 records with some information redacted from a number of the records under section 37(1) of the FOI Act which is concerned with the protection of third party personal information.
On 28 June 2024, the applicant applied to this Office for a review of the Council’s decision. In his correspondence with this Office, he said he did not receive a full view of what happened in 2012, particularly with respect to the installation of a septic tank placed among the old graves in August 2012. Among other things, he said he was in correspondence with the Council at the time about the matter and he provided copies of letters he sent to the Council at the time. He said this correspondence and other correspondence was not released on foot of the FOI request.
During the course of the review, the Council located additional relevant records in its Planning Department following a further search and released those records in April 2024. Following further correspondence with this Office, the Council also released copies of photographs that were located during that additional search but which the Council had inadvertently assumed to fall outside the scope of the request. Subsequently, the Investigating Officer informed the applicant of the details of the Council’s submissions wherein it outlined the various searches it had undertaken in an effort to locate all relevant records and why it considered that no further relevant records, other than those released to date, exist or can be found. He invited the applicant to make further submissions, which were duly received.
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 between the applicant and the Council as outlined above and to the correspondence between this Office and both parties on the matter. 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.
The Council’s position is that it has released all available records that could be found and that at this stage, no further relevant records exist or can be found. This is, in essence a refusal to provide additional relevant records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. The applicant’s position is that further relevant records should exist. Accordingly, this review is solely concerned with whether the Council was justified in refusing access, under Section 15(1)(a) of the Act, to any further relevant records on the basis that no further relevant records exist or can be found. As the applicant has not sought a review of the Council’s decision to redact certain information from the records released, I will give no further consideration to that matter in this review.
While I appreciate that the matter of the placement of the septic tank is a cause of great concern and distress to the applicant, it is important to note that under section 13(4) of the Act, any reason that a requester gives for the request shall be disregarded in deciding whether to grant or refuse a request. This means that I cannot have regard to the applicant’s motives for seeking access to the records sought, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest (not relevant in this case).
I would also add 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 or their staff. As such, it is not within the remit of this Office to consider the appropriateness, or otherwise, of the Council’s decision to sign-off on the works that took place in 2012.
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’s submissions
As I have outline above, during the course of the review, the Investigating Officer informed the applicant of the details of the Council’s submissions. Accordingly, while I will not repeat all of the details of those submissions here, I can confirm that I have had regard to them in full.
The Council said that while the original request for records was forwarded to both the Planning and Environment sections of the Council, only the Environment section retrieved and released a number of records relating to the case file reference for the remedial works carried out. It said that following the request for an internal review, two further records which had been overlooked due to a scanning error were located and released. It added that following further correspondence with the applicant, it conducted an additional search within the Planning section which resulted in the retrieval and release of records related to the relevant Enforcement case in digital format (a hard copy was not found in archives or current files).
Planning section searches
The Council said it holds records in a variety of forms i.e. microfilm, hard copy paper files and electronic files. It said that as per the National Retention Policy for Local Authority Records, in cases where files are closed following the issuing of a warning letter, the retention recommendation is to retain for two years then destroy. If the case necessitates issuing of enforcement notice, the file should be retained while the enforcement notice is active plus seven years and then be offered to the archivist for archiving. If the file is not archived, then it should be retained permanently. It said hard copy files relating to cases prior to 2020 are archived in the Council’s storage facility located at Moynehall, Cavan. It said the file at issue in this case relates to an enforcement case investigated in 2012 (Enforcement Case 12-13) which was deemed resolved and closed by the investigating officer in same year. It said no enforcement notice was issued in this case.
The Council said staff from the Planning section investigated the Council’s archives in March 2024 and confirmed that no hard copy files relating to Enforcement Case 12-13 were found. It said the investigating officer from 2012 retrieved the electronic records that were subsequently released to the applicant. It said the Planning section undertook a physical search for hard copy files related to the relevant file reference number in the offices of the Planning Authority stored in filing cabinets and desk-side storage. It said it also performed a manual search of all archived planning enforcement files stored offsite. It said that as part of the manual search, attention was paid to the possibility of misfiling due to human error and extended the search to nearby files checking for misplacement based on incorrect categorisation and mislabelling.
The Council said the Planning section also carried out a search of digital files. It said it used keyword searches including the case reference number, site address, names of individuals involved, and dates of enforcement notices. It said the digital search also included a review of emails of staff members involved by searching the subject lines and internal communications threads. It said it consulted with all relevant persons including the current Planning Enforcement Officer, Assistant Staff Officer of the Planning section, Senior Planner, and the previous Planning Enforcement Officer who was the investigating officer at the time of the original enforcement investigation and who provided the identified records related to the relevant Enforcement file.
When asked for further detail regarding the previous Planning Enforcement Officer’s searches, the Council said the Investigating Officer (IO) of the Planning Enforcement file in question first became aware of the FOI request on 5 March 2024. It said the IO carried out an electronic file search of his enforcement records saved and stored on Cavan County Council’s IT network and retrieved the records which were released to the applicant. It said the IO had no hard copy records of the documents but advised that historic planning enforcement files are archived in Cavan County Council’s storage facility at Moynehall. The Council said the IO was not involved in the archiving process and was not aware of the exact location of archived files. It was in this further response that the Council indicated that digital photos taken on various dates after receipt of the date of the complaint formed part of the enforcement file and were not released on the ground that they did not form part of the initial FOI request. As I have outlined above, following further correspondence with this Office, the Council subsequently released copies of the photographs that were located.
Environmental section searches
The Council said the Environment Section’s search related solely to the file that was released and that contains all of the documents associated with the environmental investigation in question. It said all complaint file details are held on a complaints database and a search of this electronic platform determined the relevant file case number. It said the relevant file was retrieved from the storage facility and the necessary documents contained on that file were scanned and provided by the Environment Section to the FOI officer. In response to further queries form this Office, the current Chief Scientist said that an additional search was carried out for further records that may have been stored in an historical email inbox related to a relevant Environmental staff member, but no records were identified.
Further Submissions
The Investigating Officer raised further queries related to the physical searches carried out at the archiving facility at Moynehall. In response, the Council said those carrying out searches obtained the file reference number from the planning enforcement register. It said the file retrieval request was submitted to relevant staff members via the Senior Planner. It said file retrieval requests are logged on a Microsoft Excel spreadsheet which is saved on a shared drive for Planning staff only and includes information such as file requests, situations where files are not found, completed searches, and files returned to archives. It said the locations of planning files stored in the archives are documented on a separate spreadsheet.
The Council said that before visiting the actual site, staff consulted the spreadsheet to identify the file number, box number, and the location within the archive facility. It said no record in relation to this case was recorded on the spreadsheet but that the location of enforcement files was noted. It said staff conducted a search of the relevant box for the year 2012, adjoining enforcement case boxes, and all boxes marked “enforcement,” to ensure the file was not misplaced. It said this search was conducted on 6 March 2024.
Analysis
The Council’s position that it has completed a thorough search and review of all files and records relating to this case and is satisfied that all reasonable steps have, at this stage, been taken to locate the records sought by the applicant and that all available records from both Environment and Planning sections have been identified and released to the applicant.
Having regard to the Council’s submissions, it would appear that a hard-copy enforcement file did, at one stage exist and it is unfortunate that the Council is not in a position to indicate if the file was, at some stage in the past, destroyed. It is important to note, however, that the FOI Act does not require absolute certainty as to the existence
or location of records, as situations arise where records are lost or simply cannot be
found. What section 15(1)(a) requires is that the FOI body 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 even where the evidence suggests that the records sought did, at some stage in the past, exist.
It seems to me that the Council has carried out extensive searches for further relevant records in this case and despite those searches, no further relevant records can be found. Having regard to the details of those searches and to the details of its records management practices, I am satisfied that the Council has, at this stage, taken all reasonable steps to locate the records sought. Accordingly, I find that the Council was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access, under section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant’s request other than those already released to date on the ground that no further records could be found after all reasonable steps to ascertain their whereabouts have been taken.
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.
Stephen Rafferty
Senior Investigator