Case number: OIC-137239-Y8R5C9

Whether the Council was justified in refusing a request for records relating to a registered letter sent by the applicant to the Council, under section 15(1)(b) of the FOI Act, on the basis that the request did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps

 

21 July 2023

 

Background

In a request dated 16 November 2022, the applicant made a request to the Council for copies of all emails/correspondence from various Council departments and minutes of meetings (including meetings and correspondence with external parties) concerning the contents of a registered letter he said that he had sent to the then County Manager on 31 March 2015.

On 25 November 2022, the Council wrote to the applicant and asked him to provide more information on the subject matter of the relevant letter, or to provide a copy of the letter, to allow the precise records sought to be identified and located. On 1 December 2022, the applicant informed the Council that the contents of the letter concerned a “planning complaint” in relation to a specified commercial property.

On 4 January 2023, the Council again wrote to the applicant. It informed him that it had identified 8 planning applications submitted by him in relation to the property in question, and asked him to specify which of the applications might be most relevant to his request. However, the applicant did not respond to the Council.

On 10 January 2023, the Council issued a decision where it purported to refuse the applicant’s request on the grounds that section 12(1)(b) of the FOI Act had not been satisfied (section 15(1)(b) refers). The applicant sought an internal review. He noted that he found it “difficult to accept” that the Council did not have a record of his letter, given that it had been “delivered by Registered Post”. He described it as an “important letter”, which had been posted directly to the then County Manager. On 14 February 2023, the Council affirmed its original decision, on the basis that section 12(1)(b) applied, as it had “taken reasonable steps to identify the record sought”. On 4 April 2023, the applicant applied to this Office for a review of the Council’s decision.

During the course of this review, the Investigating Officer informed the Council of her view that section 15(1)(b) was the appropriate provision in this case, rather than section 12(1)(b) and she sought a submission on that basis. The Investigating Officer also asked the applicant to clarify why he had not provided any further details of the registered letter in question to the Council. He duly responded.

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 decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for various records relating to a registered letter sent by him on 31 March 2015, under section 15(1)(b) of the FOI Act.

Preliminary Matters

Before I address the substantive issues in this case, I wish to make the following preliminary comments.

In his submissions to this Office the applicant set out details of why he was seeking access to the information. Section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, 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 also wish to explain 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. As I explained above, our role is confined to considering whether the decision taken by the Council is in accordance with the provisions of the FOI Act.

Analysis and Findings

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. Section 12(1)(b) of the FOI Act is concerned with the processing of FOI requests and is not a valid ground of itself for refusing an FOI request. A refusal of a request on the basis that the applicant has not complied with section 12(1)(b) is, essentially, a refusal under section 15(1)(b).

Section 15(1)(b) is subject to section 15(4) of the FOI Act. Section 15(4) provides that a body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).

The general thrust of the Council’s submissions to this Office were that the applicant’s request was too broad. It said that he had made three previous requests which were of a similar nature and that all three were the subject of an application for review to this Office, but were later withdrawn. The Council said that the applicant had “repeatedly been advised that he needs to be more specific” to help it to identify relevant records.

The Council’s submissions also included details of the steps it had taken or that it considered would be necessary to locate relevant records in this case. Most of the information provided concerned the types of records held on planning files and/or whether they were available publically or solely retained internally. It also provided details of the steps needed to obtain archived planning files from offsite storage, so that they could be searched. Essentially, the Council’s arguments concerned what it considered to be the onerous and costly steps required to locate a record from 2015 which it believed might relate to one of 8 planning files, with little or no information provided to specify the particular file concerned. The Council also stated that records relating to planning matters before 2016 pre-date the merger of Limerick County and City Councils. It said that it no longer has access to a lot of the email accounts or shared drives from that time. It further stated that there had been a “considerable turnover” of staff in the relevant areas since 2015. I also understand that the County Manager at the relevant time no longer works in the Council.

During the course of this review, the Council indicated that section 15(1)(a) of the FOI Act might also apply. It said that based on the searches carried out in relation to the requester’s previous three requests to the Council, “which were of a similar nature”, it was “reasonable to assume that the record[s] either do […] not exist or cannot be located”. It also stated that “reasonable searches have been carried out” based on the information the Council had to hand, but that without knowing which planning file was most relevant “it was not possible to determine whether or not such records exist.”

In correspondence with this Office, the applicant argued that he was not given a date or timeframe in which to respond to the Council’s request for clarification on 4 January 2023. He noted that the Council’s decision issued on 10 January 2023 and said that he had effectively only been given three or four business days to reply. The applicant also queried why the request for clarification had been sent by email, rather than by post, which was the Council’s usual method of correspondence with him. The applicant also clarified that the registered letter did not, in fact, relate to any specific planning file as the Council had suggested. Instead he stated that the letter referred to issues with the Planning Department, and that it contained “specific examples of the [Council’s] behaviour towards [him]”.

Analysis

The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. I believe this is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the request contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.

As I outlined above, the Council refused the request on the basis that it did not contain sufficient particulars in relation to the information sought to enable the record(s) to be identified. I note that the Council was able to identify eight planning applications on foot of the clarification provided by the applicant, which might relate to his request. I accept that the applicant’s request contained sufficient particulars for it to identify the relevant section(s) which held records relating to his request. However, I must also consider whether he had provided enough detail to allow it to identify the particular records concerned by taking reasonable steps.

I have had regard to the Council’s submissions to this Office that the records concerned pre-date the merger of Limerick County and City Councils and the resulting effect on its ICT systems. I have also had regard to its comments that many of the staff members employed at the relevant time, including the County Manager, no longer work in the Council. Furthermore, I note its submissions that the majority of records on a planning file are available publically for inspection and that it has informed the applicant of this.

It is particularly of relevance in this case that the applicant has not sought a copy of the registered letter of March 2015. Rather he has sought access to records relating to or emanating from its contents. I note that he has stated that the letter relates to a planning complaint concerning a specific location. However, he has not provided any further details. I also note that the applicant did not provide any details of the letter in question when he made his original request, other than to say that he sent it by registered post to the then County Manager on 31 March 2015. The applicant did not respond to the Council’s request for clarification dated 4 January 2023, when he was asked to specify which of the 8 planning applications identified might be most relevant to his request. Subsequently, he did not attempt to clarify this in his internal review request. Furthermore, while it appears to me from his correspondence with this Office that he may have a copy of the letter concerned, the applicant has not provided a copy of the letter concerned to the Council or to this Office, which would have assisted matters.

In the circumstances, it seems to me that, effectively, the Council is in a position where it does not know the precise subject matter of the applicant’s request, and that it would be required to locate a copy of the applicant’s registered letter before it could begin to process his request for records relating to it. It also seems to me that it was not unreasonable for the Council to request further clarification from the applicant so that it can process his request. I note the applicant’s comments that he was not given a timeframe to respond to the Council’s request for clarification. However, it is noteworthy that he did not state that he had intended to reply or to provide any further clarification if the decision had not issued on 10 January 2023. Furthermore, even though it was apparent that the Council believed the letter to be held on one of eight archived planning files, the applicant did not inform it at internal review stage that the letter related to a complaint he had made to the Council generally, rather than in relation to a specific planning file.

In all of the circumstances of this case, I am satisfied that the Council assisted or offered to assist the applicant to amend his request so that it would no longer fall to be refused under section 15(1)(b). I might add that while there is an onus on FOI bodies to assist, or at least offer to assist, requesters, it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. This is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held. Nevertheless, as outlined above, section 12(1)(b) provides that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the record(s) to be identified by the taking of reasonable steps. I am also satisfied that the applicant is in a position to provide more details relating to the letter to allow the Council to take reasonable steps to locate records relating to his request.

Having regard to the above, I find that the Council was justified in refusing the applicant’s request under section 15(1)(b) of the FOI Act.

For the benefit of the applicant, I should state that it is, of course, open to him to make a fresh request for access to the records sought. While I accept that the matters concerned are of some significance to him, the Council has informed this Office that it has not located a copy of the relevant letter of March 2015. Accordingly, if he makes a new request, I would expect the applicant to engage with the Council to clarify the precise nature of the registered letter in question, and/or to provide a copy of the letter to the Council if it is available.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request under section 15(1)(b) of the FOI 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.

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Sandra Murdiff

Investigator