Case number: OIC-137111-X2T6C0

Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to additional records relating to the applicant’s request, other than those previously released, and whether it was justified in withholding access to some limited information under section 37(1)

 

8 August 2023

 

Background

In a request dated 8 January 2023, the applicant sought access to various records relating to certain comments made by a Council waste regulation official (Mr X) in a letter dated 14 December 2016, to the secretary of a specified waste company (Company Y). On 7 February 2023, the Council refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or could be found other than those released in relation to previous FOI requests.

The applicant requested an internal review of the Council’s decision. On 6 March 2023, the Council affirmed its initial decision. On 3 April 2023 the applicant applied to this Office for a review of the Council’s decision.

During the course of this review, the Council located an additional record which it released to the applicant subject to the redaction of limited third party personal information under section 37 of the FOI Act. It also made submissions to this Office in support of its refusal to release additional records. The Investigating Officer provided the applicant with details of the Council’s submissions where it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records existed. The Investigating Officer invited the applicant to make further submissions on the matter, which he duly did. Among other matters, the applicant objected to the information withheld from the record released during the review.

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 by the Council in support of its decisions. I have also had regards to the applicant’s comments. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Council was justified in refusing access to additional records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further relevant records exist, and in refusing access to third party personal information from a record released during the review under section 37.

Preliminary Matters

During the course of this review, the applicant indicated that he sought the name of the Assistant Waste Regulation Officer that was consulted during the initial search for the records requested by the applicant. I am satisfied that this is outside the scope of his FOI request in this case. 

Analysis and Findings

Section 15(1)(a)

The applicant’s request sought the following records:

  • The applicant referred to Mr X’s comment in the first paragraph of the letter where he stated that he understood that a particular review application had been received “within the statuary 60 day period prior to expiration of the permit”. The applicant sought access to “all information [Mr X] relied on to reach this conclusion”, as well as all records “connected with it and generated in relation to how [Mr X] formed this opinion”.
  • The applicant referred to paragraph 4 of the letter and said that “[Mr X] states with certainty that because the application was received in accordance with the legislation the existing permit remains in force”. He queried what information Mr X relied on “to justify going from I understand [in paragraph 1] to certainty [in paragraph 4]”.
  • The applicant was of the view that Mr X’s comment in paragraph 5 that he trusted that this “clarifies the matter for you however should you have any additional queries you can contact the undersigned” implied that there had been a query in relation to the application concerned, and he sought a copy of the query and all records connected to it. 

The Council refused the applicant’s request for access to records and/or information relating to the letter drafted by Mr. X in relation to Company Y under section 15(1)(a) of the FOI Act. Section 15(1)(a) 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 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.

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 public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

As noted above, the Council provided this Office with details of the searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further records exist or can be found. An outline of the Council’s submissions has been provided to the applicant and he has made comments in response. While I shall not set out the parties’ submissions in detail, I can confirm that I have had regard to them for the purpose of this review.

The Council stated that the Waste Regulation Officer and the Assistant Waste Regulation Officer carried out searches of relevant hardcopy and electronic records. It said that it also consulted with its Information Systems department and that searches were done using relevant waste facility permit reference numbers.

In his correspondence with this Office, the applicant did not accept the Council’s submissions and raised a number of queries, as well as objecting to the redactions made to the record released under section 37.  The Investigating Officer asked the Council to comment. In its response, the Council stated that the letter dated 14 December 2016 was “a standard template sent to Waste Facility Permit applicants that meet specific criteria”. The applicant was of the view that the emails released during the review may have been edited or that additional information may have been deleted in addition to what had been withheld under section 37. He also commented on the formatting of the emails in question. The Council stated that no further editing or deletion had been carried out on the records released other than the redaction of third party personal information. It also stated that the formatting of its systems meant that headers of emails typically appear in a darker shade than the subject matter.

In relation to the statement in the letter that “the waste facility permit number […] remains in force”, the Council referred to article 31(1) of S.I. No 821/2007 Waste Management (Facility Permit and Registration) Regulations 2007 (as amended). This article provides that a permit holder must submit an application to review a waste facility permit “no later than 60 working days before the date of expiry of an existing waste facility permit if it is to remain in force until such time [as the reviewed permit] is granted or refused under article 35 or, … a new waste facility permit is granted under article 18, or the existing permit is revoked under article 36.” It stated that it could be assumed that the information relied upon to count the number of days from the receipt of the review application to the date of the expiry of the original permit “was a calendar”. Essentially, it stated that, there are no further records on the file relating to the first two parts of the applicant’s request and that no such records never existed.

As noted above, during the course of this review, the Council located an internal email thread dated 13-14 December 2016, which related to the letter issued to Company Y on 14 December 2016. I understand that this email thread was released to the applicant on 30 May 2023, subject to the redaction of the name of an employee of Company Y redacted under section 37(1) of the FOI Act. The Council’s position is that this record relates to the last part of the applicant’s request.

In its submissions, the Council stated that the applicant had made a total of 13 other access requests in 2020-2023 regarding the waste facility permit in question. It said that searches for relevant records had been carried out in relation to this case and each of the previous requests. In particular, it stated that the work diary and notes of the Waste Regulation officer had been searched in the course of reprocessing the applicant’s previous requests.

Essentially, the Council’s position seems to be that the relevant letter was based on a template letter sent to applicants that meet the relevant criteria, and that the conclusions which the applicant believes to have been drawn by the author were based on the application of the relevant legislation to the facts of the permit application.

I am satisfied that the Council has adequately explained, with supporting documentation, why it concluded that no further records relating to the applicant’s request exist or can be found in this case. Furthermore, although the applicant has indicated that he does not accept the Council’s position, he has not provided any substantive arguments to satisfy me that further searches are warranted. Accordingly, in the circumstances of this case, I find that the Council was justified in refusing to grant access to additional records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be located.

Section 37(1)

As noted above, the Council withheld access to the name of a staff member of Company Y from the email thread released during the course of this review. As also noted, the applicant objected to this.

Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record. The relevant part of the record withheld is the name of a contact in a third party private company. In the circumstances, I am satisfied that section 37(1) applies and that none of the provisions of section 37(2) serve to disapply subsection (1).

Section 37(5) - The Public Interest

There is a public interest in openness and accountability relating to how public bodies carry out their functions. However, there is a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution), which is recognised by the language of section 37 and also by the Long Title to the FOI Act.

When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I do not see any public interest in favour of the release of the personal information of a third party in circumstances where the applicant is seeking information relating to the Council’s management of waste facility permits. I also note that the applicant has not made any public interest arguments in this regard.

On balance, I find that the public interest in granting access to the name of a member of staff of a private company withheld from the email thread is not such that it outweighs the public interest that the right to privacy of the third party concerned should be upheld. I find, therefore, that the Council was justified in refusing access to the relevant part of the record under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that it was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the grounds that no additional records exist or can be found. I also affirm its reliance on section 37 to refuse access to some limited information from a record released during this review.

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.

Sandra Murdiff

Investigator