Case number: OIC-58192-X7S5G4

Whether the Council was justified in justified in refusing the applicant’s request for records relating generally to a named estate on various grounds, including that parts of the request were not valid and that no relevant records exist

20 January 2020

Background

In a letter dated 12 September 2019, the applicant submitted a request to the Council generally relating to a named estate. While he stated he was seeking access to records, his request comprised, in large part, requests for information or answers to questions.  The request can essentially be broken down into four parts:

  1. A list of 15 questions concerning maintenance and grass cutting services in the estate
  2. A question as to what action has been taken in relation to nearby flooding
  3. All records relating to a walkway between the estate and an adjoining estate and two questions relating to the closure of the laneway
  4. Records of who the Council’s insurers are, including their contact details.

On 20 September 2019, the Council issued a decision in which it refused the first three parts of the request on the ground that they did not comprise valid requests for records, although it provided brief responses to the majority of the questions. In relation to parts two and three, it stated that it holds all of the information sought but not in a single record and that the Act does not require it to create a new record to answer a series of questions. It refused part four under section 15(1)(i) on the ground that the information sought was provided in response to a previous request.

The applicant sought an internal review of that decision, following which the Council varied its original decision. While it maintained that parts one and two did not comprise valid requests, it also refused part one under section 15(1)(a), which allows for the refusal of a request on the ground that the records sought do not exist or cannot be found. The internal review decision made no reference to part three and in relation to part four, the Council stated that it is self-insured.

 On 22 October 2019, the applicant sought a review by this Office of the Council’s decision.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the Council as outlined above and to communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for records relating generally to a named estate on various grounds, including that parts of the request were not valid and that no relevant records exist.

Analysis and Findings

It is important to note at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that under section 12(1), 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. As such, if a requester wishes to obtain information from a public body, s/he should seek access to records that hold such information and should include sufficient details in the request to allow the public body to identify the records sought.

Under section 12(6) of the Act, where a person makes a request for information other than in accordance with the Act and it may not be possible to give the information other than pursuant to an FOI request in accordance with the Act, the FOI body must assist, or offer to assist, the person in making such a request.

In a submission to this Office, the Council said the estate in question is a private estate and that it has no policy in place regarding grass cutting. It said local residents are responsible for the maintenance operations with assistance from the Council as resources allow similar to other private estates in the city. It said it assists local residents with maintenance of lawn areas in the estate including approximately two cuts per year but that the cuts are not recorded as they are treated as one-off. In relation to the enclosed park, it said the park is mowed on a 14-18 day cycle and that each mowing is recorded in the general foreman’s diary for reference.

On the matter of flooding, the Council said there is no report on flooding in the amenity park. In relation to the laneway, it said there was no decision to close the link between the two estates and that the matter is ongoing. It said the issue of the laneway had been discussed at a Ward Meeting on 12 October 2018 and a North East Local Area Committee Meeting on 27 November 2019 at which Ward Members agreed that there should be a public consultation in relation to the proposal to close off the walkway and that this is being considered.

Finally, on the matter of insurance, the Council said it is self-insured and that all of its various policy claims are administered through its claims section.

In essence, the Council position is that the applicant sought answers to questions as opposed to seeking access to specific records and as it generally holds no records that might contain the answers sought, it could not reasonably infer the questions to be requests for records containing the information or answers sought. On the matter of the obligation under section 12(6) to provide assistance, the Council argued that it had attempted to assist the applicant by providing him with answers to the questions he had asked, some of which it also claimed to have provided previously.

Having carefully considered the applicant’s request, it seems to me that for the most part, it does not constitute a valid request for access to records in accordance with section 12(1). While the applicant said he was looking for records, it is clear to me that he was essentially seeking answers to specific questions concerning the actions the Council has taken in relation to the estate and reasons for those actions. Given the explanation provided by the Council of its responsibilities concerning the estate and of the developments relating to the estate, I am satisfied that the Council could not reasonably have been expected to treat the request as a request for records that contain the answers to those specific questions.

However, I am not satisfied that the Council was entitled to consider the entirety of the request as being invalid. I note, for example, that while the applicant asked specific questions concerning the laneway, he also sought “all records” in relation to the laneway. Furthermore, I do not agree that the Council met its obligations under section 12(6) to offer assistance by providing answers to the questions asked. The assistance to be offered under section 12(6) is assistance in making a valid request. In this case, such assistance might reasonably have included the Council explaining the requirements of the Act in respect of making a request and explaining the types of records it holds relating to the topics identified by the applicant, thereby allowing him to make a valid request.

I should add that it seems to me that the Council does, indeed, hold certain relevant records. I note, for example, that the question of the closure of the laneway is under active consideration. I also note that while the Council said in its submissions to this Office that there is no report on flooding in the amenity park, it said in its original decision on the request that the Council’s drainage division was reviewing the issue.

In the circumstances, I consider the most appropriate course of action to take is to annul the Council’s decision to refuse the request. However, I do not consider it appropriate to simply direct the Council to process the request afresh, given my view that the majority of the request is not a valid request. Instead, I direct the Council to engage with the applicant and to offer assistance to help him submit a fresh request that is in accordance with the provisions of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant’s request for records relating generally to a named estate on various grounds, including that parts of the request were not valid and that no relevant records exist.

I direct the Council to engage with the applicant and to offer assistance to help him submit a fresh request that is in accordance with the provisions of the Act.

Right of Appeal

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