Case number: OIC-144020-J2Z1R1

Whether the Council was justified in refusing access to records relating to the applicant’s participation in the SLR process and the documentation in respect of the legality of the applicant’s participation in the SLR process and any relevant third-party submission taken into account by the Council staff under sections 15(1)(a) or 15(1)(c) of the FOI Act

 

22 March 2024

 

Background

In 2018, Cork County Council wrote to multiple land owners with an invitation to participate in a Strategic Land Reserve (SLR) Process carried out by Cork County Council. In 2018, the applicant emailed Cork County Council, indicating his intention to participate in this SLR Process in relation to a specific parcel of land involved in the SLR Process. Cork County Council emailed the applicant acknowledging receipt of his submissions.

In a request dated 29 June 2023, the applicant submitted a request to Cork City Council for all personal records in respect of his participation in the SLR process between March 2018 and October 2018 when the SLR Report and Recommendations were presented to the Elected Members of the Development Committee. The applicant stated that these records included all documentation in respect of the legality, or otherwise, of the applicant’s participation in the SLR process and any relevant third party submission taken into account by Cork County Council staff in those deliberations during the above reference time period. The applicant stated in his request that the subject lands of his request were transferred from Cork County Council jurisdiction to Cork City Council Jurisdiction in May 2019. On 9 August 2023, the Council refused the applicant’s request. It said no digital or physical records relating to the request relevant to the parameters of the FOI request were found. On 15 August 2023, the applicant sought an internal review of the Council’s decision. On 5 September 2023, the Council affirmed its refusal of the request, under section 15(1)(a) of the Act. On 21 November 2023, the applicant applied to this Office for a review of the Council’s decision.

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 applicant’s comments in his application for review and to the submissions made by the Council during the review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council initially refused the request under section 15(1)(a) of the Act on the basis that the records sought do not exist or could not be found. During the course of the review the Council said it had located several boxes of records that might contain relevant records. However, it said it wished to rely on section 15(1)(c) of the Act to refuse the request on the basis that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.

Accordingly, this review is concerned with whether the Council was justified in its decision to refuse the records sought by the applicant under section 15(1)(a) and/or 15(1)(c) of the FOI Act.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

As I have outlined above, during the course of the review the Council identified 11 boxes of records following further searches, located in off-site storage, that may contain records relating to the SLR process. It said the reason these records were not identified in its initial searches was because they were categorised “Estates files from County” and therefore did not fall under the key search terms that were used by the Council. Given the possibility that the records located may contain relevant records, I simply cannot find that the Council was justified in refusing the request on the basis that the records could not be found or do not exist. I find, therefore, that the Council was not justified in refusing the request under section 15(1)(a) of the FOI Act.

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.

The Council said that to ascertain if the 11 recently located boxes contain relevant files related to the SLR process and to the applicant in particular, the boxes would have to be recalled from storage and the contents reviewed. It said it was of the view that this would place an undue burden on the relevant section and that the applicant’s request should be refused under section 15(1)(c).

It is important to note that under section 15(4) of the Act, a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the Council was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.

The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(c), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

As the Council has acknowledged in its submissions, section 15(1)(c) was not relied on as a ground for refusing the request. As such, the Council did not comply with the requirements of section 15(4) before seeking to subsequently rely on section 15(1)(c) as a ground for refusal. I find that the Council did not comply with the provisions of section 15(4) in this case. This finding, of itself, is sufficient for me to find that the Council was not justified in refusing the applicant’s request under section 15(1)(c) of the Act, and I find accordingly.

Accordingly, I find that the most appropriate course of action for me to take at this stage is to annul the decision of the Council to refuse the applicant’s request and to direct it to make a fresh decision on the  request. If the applicant is not satisfied with the new decision made by the Council, the usual rights of review will apply. I appreciate that this means yet another delay in the applicant receiving a definite outcome on his request. Accordingly, if the applicant finds it necessary to once again apply to this Office for a review of the Cpouncil’s decision on the request, we will endeavour to process the review as quickly as possible.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse the applicant’s request under sections 15(1)(a) and 15(1)(c) of the FOI Act. I direct it to process the request afresh.

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