Case number: OIC-144023-P8Y2C9

Whether the Council was justified in refusing access to records relating to the applicant’s participation in an SLR process on the ground of section 15(1)(a) of the FOI Act

 

13 March 2023

 

Background

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

In a request dated 29 June 2023, the applicant submitted a request to the 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, to include all documentation in respect of the legality, or otherwise, of his participation in the SLR process and any relevant third party submission taken into account by Council staff in those deliberations during the above referenced time period. He stated in his request that the lands that were the subject of the request transferred from Cork County Council jurisdiction to Cork City Council Jurisdiction in May 2019.

On 18 July 2023, the Council issued refused the request under section 15(1)(a) of the Act on the ground that the records sought could not be found. It noted that the subject lands are located within the boundary of Cork City Council and that the relevant planning policy document guiding and regulating their development was, therefore, the Cork City Development Plan 2022. It said it understood that a parallel request has been submitted to the Cork City Council, who it said now hold the relevant records.

On 15 August 2023, the applicant sought an internal review of the Council’s decision. He said he understood that his involvement in the SLR Process in 2018 had been the subject of advice from the Council’s legal advisors and was discussed with Management. He suggested it was possible that the records of his personal involvement lay outside the Council’s Planning Policy Unit (PPU). On 22 September 2023, the Council affirmed its refusal of the request under section 15(1)(a). It said it conducted searches within the Planning Department, the Corporate Services Department and the Legal Department. On 21 November 2023, the applicant applied to this Office for a review of the Council’s decision.

During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no relevant records exist or could be found. The Investigating Officer invited the applicant to make submissions. No such submissions have been received to date.

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 Council and the applicant as outlined above and to the communications between this Office and both parties on the matter. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records relating to his participation in an SLR process on the basis that the records sought do not exist or cannot be found.       

Analysis and Findings

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 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.

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 is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

As I have outlined above, the Council provided this Office with submissions detailing its reasons for concluding that no further records exist or can be found relating to the applicant’s request, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

In its submissions, the Council said that all records were transferred to the City Council in 2019 and that no records were retained. It said the filing system log for its off-site records was checked for relevant records, and that searches were conducted of the relevant Council filing cabinets, including the remaining SLR files that are still within the jurisdiction of the Council to ensure that no records were misfiled, and that no records relevant to the applicant’s request were found.

The Council added that searches were carried out on the PPU electronic internal drive and a number of other specified drives including the Backup Drive. It said it was unlikely that any files would be found here, but a keyword search was conducted for completeness. It said email accounts of relevant staff, laptop Drives and personal Drives of relevant staff were also searched using specified key words relevant to the applicant’s request. It said the PPU general email was searched, along with a new Share point system to which the PPU migrated in December 2023. It said that the relevant staff were contacted including administrative staff, and their records searched.

The Council added that the SLR electronic records were transferred to the City Council in April 2019 and that the hard copy files were transferred to in May 2019, with a further transfer of PPU Electronic records in May 2019. It said it cannot definitively state what records were included in the SLR files transferred.

The FOI Act does not require absolute certainty as to the existence or location of records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. The question I must consider, therefore, is whether the Council has taken all reasonable steps in this case to ascertain the whereabouts of the records sought. Given the Council’s description of the searches undertaken for relevant records and the fact that records relating to the relevant SLR were transferred to the City Council in 2019, and in the absence of any evidence to suggest that further searches are warranted, I am satisfied that it has. In the circumstances, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records on the ground that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for records relating to his participation in an SLR process on the basis that the records sought do not exist or cannot be found.      

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