Case number: OIC-54891-C5M3D4
5 February 2020
On 18 October 2018, the applicant sought access to documents and correspondence held by the Council relating to:
While the Council said in its decision of 15 November 2018 that it had decided to grant the request, it did not release any specific records. Instead, it provided a response in respect of each part of the applicant’s request. On 11 December 2018, the applicant sought an internal review of the Council’s decision on the ground that certain records relating to each part of his request should exist. He also sought further information in relation to some of the responses provided by the Council.
On 23 January 2019, the Council issued its internal review decision, in which it released 22 records relating to part 4 and two records relating to part 6 of the applicant’s request. Following a request by the applicant for clarification of a number of related matters, the Council subsequently released one further record relating to part 4. On 22 July 2019, the applicant sought a review by this Office of the Council’s decision in respect of parts 1 to 4 of his request on the ground that further relevant records should exist.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the Council and the applicant outlined above and to correspondence between this Office and both the Council and the applicant on the matter.
During the course of the review, the Council argued that no further relevant records exist apart from those that were already released. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to additional records coming within the scope of parts 1 to 4 of the applicant’s request other than those already released to him on the ground that no further relevant records exist or can be found.
It is important to note at the outset that while the purpose of the 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.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
Parts 1, 2, and 4
In its submissions to this Office, the Council provided details of its record storage practices and of the searches conducted in response to the applicant’s request. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council outlined that records relating to the preparation and adoption of a local area plan are held within the forward planning area of the planning department. It stated that a physical search of three hard copy files and electronic searches within the shared folder for the New LAP and the emails of the Council Official who wrote the LAP were carried out.
Having regard to the wording to the applicant’s request and to my comments above under the heading “Preliminary Matter”, I am of the view that the records sought at Parts 1 and 2 comprise any record(s) that identifies who commissioned the new LAP and any record(s) that contains the reasons why the new LAP was considered necessary.
On these points, the Council provided the following explanation:
Part 4 of the request comprises a request for any record(s) that contains details of instructions to any third party engaged to write the New LAP together with any drafts of the New LAP and comments on such drafts.
In response, the Council stated that no relevant records could be held by third parties as no third parties had been engaged to write the New LAP. It said the two third party companies it had appointed were, instead, engaged to provide supporting environmental reports and maps on the instruction of Council Officials. In relation to drafts of the New LAP, the Council confirmed that while a number of draft versions of the New LAP were included in the records released to the applicant in the form of attachments to emails (Record 5 and 9) no further draft versions are held by the Council as its process involves working on one document that is continuously updated.
The applicant argued that further should records to exist in relation to part 1 in light of the expenditure incurred on the project. In relation to part 2, he argued that the new LAP does not satisfactorily explain why it was deemed necessary as it does not explain what was defective with, or not addressed by, the prior plan which was not due to expire until 2020. In relation to part 4, he argued that consultants were engaged in the preparation of the new LAP and as such, records relating to the Council’s engagements with the consultants fall to be considered for release.
It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body, then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice.
Having considered the details of the searches undertaken by the Council and its explanation of its processes, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of parts 1 and 2 of the applicant’s request.
In relation to part 4, the request for records is quite specific. It is for records relating to instructions to any third party engaged to write the New LAP. I accept the Council’s assertion that the consultants were not engaged to write the new LAP. Instead, they were engaged to provide documents that the Council deemed necessary in order to allow it to prepare the new LAP, i.e. supporting environmental reports and maps. As such, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of part 4 of the applicant’s request.
I find, therefore, that the Council was justified in refusing access to additional records relating to parts 1, 2, ands 4 of the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist.
At part 3 of his request, the applicant sought records relating to the costs of the New LAP. The Council did not release any relevant records. Instead, it provided details of the total amount of expenditure incurred as a result of its engagement of the relevant consultants. It seems to me that the Council made no effort to identify relevant records and to consider such records for release. Indeed, in a submission to this Office, the Council said that it would not usually release confidential financial documentation and would need further time to examine such records.
In the circumstances, I am not satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of part 3 of the applicant’s request. I find, therefore, that the Council was not justified in refusing access to records relating to that part under section 15(1)(a) of the FOI Act.
I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council with respect to part 3, the effect of which is that the Council must consider that part of the applicant’s request afresh and make a new, first instance decision 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 he is not satisfied with the Council’s decision.
I should say that the precise nature and extent of the records sought by the applicant at part 3 of his request is not entirely clear. For example, it does not appear that he is seeking access to records such as invoices. I note that in his submission to this Office, he indicated that he would expect certain records to exist such as records that consider, review and/or approve the costs that were eventually incurred. In the circumstances, it may be useful for the Council to engage further with the applicant in the first instance to clarify the precise nature of the records sought before considering part 4 of the request afresh.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case. While I affirm its decision to refuse parts 1, 2, and 4 of the applicant’s request, I annul the decision to refuse part 3 and direct that a fresh decision making process be undertaken in respect of that part 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.