Case number: OIC-109733-D7Y9D7
8 March 2022
In a request dated 25 January 2021, the applicant submitted a request for records to Cork County Council for the following:
In a decision dated 22 February 2021, the Council refused access to records in all ten categories, citing section 15(1)(a) of the FOI Act. The applicant submitted an internal review request and a final decision on the matter issued on 22 March 2021. The Council varied the original decision and released certain records containing information on the countywide budget and other statistics for the years requested and stated that the information could be taken in part or full from those records. The Council also provided the names and titles of specified staff members. The record did not contain a narrative of the various tasks undertaken by each staff member, as the Council stated that no such record existed. On 30 June 2021, the applicant sought a review of the Council’s decision by this Office.
During the course of the review, the Investigator provided the applicant with details of the Council’s submissions wherein it described the searches undertaken to locate relevant records and invited him to make submissions in response. Submissions were received from the applicant on 1 December 2021.
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 relevant parties, the correspondence between the applicant and the Council, and the correspondence between both parties and this office. I have also examined the records at issue/had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In his application for review of the Council’s decision, the applicant asked this Office to look at:
Section 15(1)(a) of the FOI 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 the question of whether the Council was justified in refusing access, on the basis of section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant’s request.
It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
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 after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's 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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
Adequacy of searches
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.
In its submissions to this Office, the Council stated that it is guided by the LGMA national retention policy in conjunction with following its own retention policy for records. The Council confirmed that no records were destroyed in relation to this request, and all records available were obtained by staff. It was further clarified, that any records relating to finance/budget are stored electronically on the Integra system. The Council also stated that the following steps were taken by the Housing Directorate when attempting to locate the records:
With regard to the searches for parts 1 – 9, it was clarified that the records are held electronically and that the Council did not have records available specifically on the Mitchelstown area, nor was it possible to extrapolate same without doing a manual calculation which would have had to be carried out. The Council states that this would have meant the creation of a new record specifically for this FOI request.
The Council further stated that it is satisfied that the information is not readily available for extraction, as the information is contained within a number of databases and manual records. Where records for the Mitchelstown area were not readily available, it stated that it provided the applicant with records covering the broader Cork area, along with reasons for records not existing. In respect of part 10 – a list of staff titles and their respective area of work was released as part of the appeal process. The Council clarified that it is not possible to release a record of each staff member’s ‘area of responsibility’ as it does not have a written record of this.
Following review, the Council released information that covered aspects of the request including traveller accommodation policy from 2014 – 2018, and 2019 – 2024. It also released the budget allocations for traveller accommodation in relation to the relevant years set out in the request, in conjunction with the social housing revenue budget. All of the figures released were on a countywide basis.
In his final submissions to this Office, the applicant argued that the Council had provided insufficient detail around what locations it actually checked for records. He rejected the Council’s submission regarding accessibility of the records on a directory which is either paper or electronic, and stated that there is no requirement as to accessibility in the FOI Act. He did not provide any further evidence as to possible locations of records, nor any further evidence that would indicate that records existed. He argued that the steps taken by the Housing Directorate in attempting to locate the requested records was insufficient.
He further argued that section 17(4) of the Act was applicable and that in taking the reasonable steps prescribed by the Act, if any records had been created during the process of collating information, those records must be disclosed. The applicant does not believe that parts 1 – 10 of his request have been answered in full and does not accept the Council’s explanations. In his request for internal review, the applicant stated that in relation to parts 3 and 4 of his request, concerning housing needs assessment, it was his understanding that Housing or other departments notify the property/purchase department periodically during any year of the need for housing in a particular area or region. He stated that this was in addition to properties available/possibly available for purchase in the particular area or region also being notified. He further clarified that it was his understanding that the Council undertakes a needs assessment for social housing for the whole county subdivided into regions/areas periodically in preparation for the periodic Housing/Social housing Plan for the county. He requested the most current or recent needs assessment figures.
A final opportunity was offered to the Council to provide more detail on the steps taken when searching for records. Elaboration was sought on the points raised in the applicant’s submission such as the lack of detail in relation to searches carried out and what specific actions were taken during those searches. In the Council’s response, it re-iterated that parts 1 – 9 of the request do not exist for the Mitchelstown area as were requested. It also re – iterated that the Housing Directorate received the FOI request and Senior Executive Officers in the Directorate’s Social Operations and Finance Unit circulated the request to their staff to commence the search at the time. The FOI liaison officer was contacted verbally and by email to be informed that records pertaining to parts 1 – 9 did not exist and that they would seek to gather any other available records. In the case of finance records, i.e. parts 1, 2, 5, 6 and 7 for the budgets in the Mitchelstown Area it was clarified that Traveller expenditure is recorded on a countywide basis and reports on same are not available for Mitchelstown specifically. The applicant was also provided with countywide budget figures in the internal appeals process.
In the case of part 3 for the Social Housing Needs Assessment the applicant was provided with a Countywide figure for same in the internal appeal process. The Council claimed that in relation to part 4, there were no such records available and that an explanation was given on the process for the Social Housing needs Assessment. With regard to parts 8 and 9, on the planned budgets, there were no records available and an explanation of the process was provided. With regard to part 10 seeking the roles of staff members, the Council stated that this is not available, so it provided the applicant with the titles of each staff member. The Council has reiterated that it has robust procedures in place for searches and responses to FOI requests.
The onus is on the Council to satisfy this Office that its decision was justified in finding that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I consider that the Council has responded appropriately in relation to parts of the applicant’s request. Where specific information in relation to Mitchelstown could not be located, the Council has provided the information sought in relation to the county. I consider that the Council has been clear in relation to the locations searched for the information and has specified that it does not compile the specific data requested by the applicant.
In the appeal to this office, the applicant outlined four areas for review. The first part of his appeal sets out that he would like to appeal the internal reviewer’s application of section 15(1)(a) of the FOI Act. The Council in its submissions to this office, provided its justification for the use of this exemption, and in most cases sought to provide the applicant with alternative information in the place of any part of the request to which no information could be found. This also ties in to the second aspect of the applicant’s appeal, which covers records to which full release was purported but not made. In its internal review decision the Council set out that in relation to parts 1 – 9 of the request, where specific information was not available for the Mitchelstown area for release, broader countywide data would be provided in its place. In my view, the Council has not purported full release in line with the original request but it has tried to accommodate the applicant as far as possible in most cases.
The applicant has also argued that the Council refused records on the basis that the category requested does not exactly correspond with the Council records. As previously stated, where records pertaining to an aspect of the applicant’s request was not held by the Council, it tried to gather data in broader categories to answer the applicant’s request. With regard to the applicant’s claim that section 17(4) is applicable, the provision sets out that “reasonable steps” shall be taken to extract data where an FOI request relates to data contained in one or more record held by or on an electronic device. The Council has advised on two occasions that the information sought is held across a number of electronic and hard copy files and would require a manual calculation to extrapolate the figures. While a new record, which is created following the extraction of information from an electronic device, may be released under section 17(4), there is no requirement on the Council to respond to an FOI request by collating information from electronic or hard copy files to create a new record. On that basis, I am satisfied that section 17(4) is not applicable.
Finally, the applicant has sought the review of the Council’s refusal of records on the basis that the length of time to which the FOI request is made does not correspond with the category of records held. On consideration of the original request and the Council’s provision of information on internal review, it appears that the majority of information was provided in line with the time categories set out by the applicant. The Council stated where specific information is not available in relation to a date, such as the 2015 Housing Needs Assessment data, it was specified that the data was collected on a three year basis up to that date and it was not possible to provide specific data for that year. Considering this, I am not of the view that the Council took a narrow view of the request but sought to accommodate the applicant where possible.
In relation to the figures on the Housing Needs Assessments, this information appears to be published annually by the Department of Housing in relation to figures provided by local authorities. The number of households that qualify for social housing support are listed per county and in the case of Cork broken into Cork City and wider County.
In its submissions to this Office, the Council stated that it had provided the applicant with reasons for certain records not existing in its letter of 31 March 2021. As set out above, along with the search details that have been provided to the applicant, I am satisfied that the Council was justified in refusing parts 1-6 and 9 of the request on the basis that no further records exist or could be found following reasonable searches.
However, I am not satisfied, that the Council has justified its decision in relation to parts 7 and 8. While figures in relation to the Mitchelstown area may not have been readily available as stated, the Council did not provide sufficient detail in relation to how searches were carried out for the information, and it has not provided an explanation as to why budget information for parts 7 and 8, specifically was not available. Further, I am not satisfied with the Council’s explanation in relation to part 10. It stated that there was not a written record of responsibility for staff members. I believe a narrow view was taken of this aspect of the request. The Council has not provided sufficient detail as to where was checked in relation to searches for this information. On this basis, I believe it is appropriate for me to direct the Council to carry out a fresh decision making process in respect of parts 7,8 and 10 of the applicant’s request.
When making its new decision I would remind the Council of the detailed supporting documentation on processing FOI requests available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual.
In the circumstances, I hereby vary the decision of the Council to part refuse the applicant’s request under section 15(1)(a) of the FOI Act. I annul its decision in respect of parts 7, 8 and 10 of the applicant’s request and affirm its decision that further records do not exist or cannot be found after reasonable searches were carried out, in respect of parts 1-6 and 9.
I direct the Council to conduct a fresh decision making process for records falling within parts 7, 8 and 10 of the applicant’s 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.