Case number: OIC-128440-R2J0L8
20 June 2023
In a request dated 6 July 2022, the applicant sought access to “copies of any and all evidence of contact between any official or officer of [the] Council, present or past, or any agent acting on behalf of [the] Council, and [a named individual] and/or his agents concerning his proposed re-opening of an abandoned quarry at [a named location]”. On 2 August 2022, the Council refused the request under section 15(1)(a) of the Act, on the ground that the records sought do not exist.
The applicant sought an internal review of that decision on 8 August 2022. In its internal review decision, the Council affirmed its refusal of the request under section 15(1)(a). It noted, however, three planning applications made in the name of the individual mentioned in the applicant’s request. It noted that the first file had been determined on appeal by An Bord Pleanála. It said that as this is a planning file, access to the file is provided for outside of the FOI Act. In respect of the second file, it noted that the application was considered by the planning authority as being incomplete and was returned to the applicant in its entirety. It said it does not hold any records on that file except what is already available on the Council’s website and is therefore publicly available. In respect of the third file, it noted that the file was on “Further Information” at the time. It said that as this was a planning file, access to the file is provided for outside the scope of the FOI Act.
On 19 September 2022, the applicant applied to this Office for a review of the Council’s decision. In his application for review, he noted that the Council had made no mention of other relevant records that may exist, namely diary entries, Council owned phones, email records, etc. of all relevant personnel involved in the planning process leading to the planning applications made by the individual in question. He also argued that under section 247 of the Planning & Development Act 2000 (as amended), there ought to be a record of any contact with the individual on the relevant planning files. He enclosed extracts from records held on two of the planning applications made where it is explicitly stated that the individual had meetings with Council staff.
During the course of this review, the Investigating Officer informed the applicant of the details of the submissions received from the Council and offered the applicant an opportunity to respond. On foot of the applicant’s responses, the Investigating Officer made further enquiries with the Council, following which the Council conducted further searches on foot of information provided by the applicant and in two instances, it located a number of additional email records and released them to the applicant. The applicant was given a further opportunity to make submissions and he did so.
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 described above and to all of 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.
As I have outlined above, the applicant applied to this Office for a review of the decision of the Council to refuse his request under section 15(1)(a) of the Act and during the course of the review, the Council conducted further searches and located and released a number of relevant records. It is unfortunate that the Council did not conduct sufficient searches when processing the request to enable it to locate the records at that stage. Nevertheless, its position is that it has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records and that no further relevant records exist or can be found, i.e. that section 15(1)(a) now applies.
It is important to note that a review by the Commissioner under section 22 of the FOI Act is considered to be “de novo” which means, in this case, that it is based on the circumstances and the law as they apply on the date of my decision. In Minister for Education and Science v Information Commissioner  IEHC 116, Ó Caoimh J. found as follows in relation to the equivalent provision (section 34) of the FOI Act 1997:
“In the first place importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner. This is a crucial fact to the argument presented on behalf of the Minister. In light of this fact it is clear that the decision that was to be made by Information Commissioner in light of the appeals taken to him were to made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision.” (my emphasis).
It is quite common for the scope of a review to change over the course of the review. Often, issues will arise during the review that were not considered during the public body’s processing of the request. Such issues may include a consideration of exemptions not previously claimed, new arguments in support of the refusal of a request, additional records uncovered during the review etc. Where I decide to conclude a review by issuing a binding decision, my decision addresses the outstanding issues to be considered at that time.
In this case, I am satisfied that I am entitled to have regard to the Council’s current position on the matter, namely it has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records and that no further relevant records exist or can be found. Accordingly, my review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any additional relevant records other than those released during the review after all reasonable steps to ascertain their whereabouts have been taken.
I note that during the course of the review, the Investigating Officer informed the applicant of her preliminary view that the Council had taken all reasonable steps to ascertain the whereabouts of relevant records. The applicant took issue with the suggestion that this Office might find the Council to have acted reasonably in circumstances where the records subsequently released were located only during the review and not during the processing of the FOI request. It is important to note that any findings of relevance to the outcome of the review that this Office might make in relation to whether or not the Council acted reasonably would be confined to whether it has taken all reasonable steps to ascertain the whereabouts of relevant records. A finding that it has is not the equivalent of a finding that the Council acted reasonably in the performance of its administrative functions or in the manner in which it processed the applicant’s request.
I wish to make a number of preliminary comments before I address the substantive issues arising in this case. First, in his correspondence with this Office, the applicant expressed a number of concerns about the Council’s engagements with the named individual and/or his agents in relation to his planning applications concerning the quarry. Among other things, he argued that the absence of certain correspondence from the planning files contravenes the Planning and Development Act 2000, and he expressed concerns about the approach taken by the Council to the planning applications in question.
It is important to note 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. The remit of this Office is solely concerned with a review of the decision taken by the FOI body on the FOI request and the scope of the review in this case is as I have described above and for the reasons outlined. We have no role in examining how the Council dealt with the named individual and/or his agents in respect of the planning process. Nor is it a matter for this Office to determine if the Council has contravened section 247 of the Planning and Development Act 2000, which requires a planning authority to keep a record of any consultations carried out under that section with the planning file.
Secondly, the applicant also expressed concerns about the manner in which the Council processed his FOI request. It is important to note that this review is undertaken pursuant to section 22 of the Act. That section identifies the specific decisions the Commissioner may review and is not concerned with a wider examination of how an FOI body handled an FOI request. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the FOI Act.
Section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of enabling persons to exercise the rights conferred by the Act and facilitating such exercise. Under section 44, it would, in principle, be open to this Office to carry out an investigation of a particular public body; for example, if we had concerns about ongoing and widespread non-compliance with decision making time-frames. However, a decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon in practice. Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. I am satisfied that such an investigation is not warranted in this case solely on the basis of the manner in which the Council processed the applicant’s request.
Notwithstanding the above comments, I fully accept that the Council's initial handling of the applicant’s request in this case fell short of the standards I would expect of a body that has been subject to the FOI Act for many years. It is apparent that the Council took an unduly narrow interpretation of the applicant’s request by restricting its searches to its Planning Section. The applicant sought access to records of any evidence of contact between the Council and the named individual or his agents concerning the proposed re-opening of the quarry. He did not restrict that request to contact with the Planning Section. It seems to me that the Council did not properly consider what sections of the Council might hold relevant records. Indeed, during the course of the review, the Council acknowledged that “it is normal for applicants to make contact with the Roads Section regarding large developments to discuss the application and ascertain what the Roads Section would require the application to achieve”. The Council also acknowledged that its Environment Section may be involved in matters relating to a quarry and said that all planning applications are referred to that Section. I would add that if the Council had any concerns about the precise scope of his request, it would have been open to it to seek clarification of the matter from the applicant, which it did not do in this case.
As the body holding the records that are subject to the FOI Act, and given its intimate knowledge of its own internal processes and procedures, I would expect the Council to have appropriate processes in place to ensure that searches for relevant records on foot of FOI requests are conducted in all of the appropriate sections. I would urge the Council to ensure that such processes are implemented immediately if they don’t already exist.
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. In a case such as this, where the FOI body claims that no further records exist or can be found, our role is to determine whether the body has taken all reasonable steps to locate the records sought. Our understanding of our role in such cases was approved by Mr Justice Quirke in the High Court case of Ryan v the Information Commissioner [2002 No. 18 M.C.A.] (available on www.oic.ie). This was recently affirmed by the High Court in Landers v the Information Commissioner  IEHC 170.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations occasionally arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. It is possible - and it is clearly envisaged by the Act - that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts.
Moreover, the Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. It is also important to note that our review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of an applicant's views as to the appropriateness or otherwise of the absence of certain records.
As noted above, the applicant made a number of submissions to this Office during the course of this review. Among other things, he argued that;
As I have outlined above, the Council provided this Office with details of the searches it undertook in an effort to locate relevant records and its reasons for concluding that no additional records exist or can be found other than those released during the course of the review. I also explained that the Investigating Officer provided the applicant with details of the Council’s submissions as to why it has concluded that no further records exist or can be found. While I do not propose to repeat those details again in full here, I can confirm that I have had regard to them for the purpose of this review. Nevertheless, I consider it appropriate to outline the key details of its submissions.
As I have outlined above, the Council initially confined its searches to the Planning Section. In doing so, it said the records sought related to pre-planning discussions and as there was no pre-planning file or record in existence the applicant was informed that the records did not exist. It said that a specific pre-planning file should be opened on foot of a formal request for a pre-planning meeting and as there was no written request for a formal pre-planning meeting there was no pre-planning file created for this matter. It said all individuals referenced by the applicant for this review were consulted during the search for documents.
In its submissions, the Council said the meeting highlighted by the applicant was a pre-planning meeting that took place on 25 October 2019 at the Council’s premises prior to the making of one of the planning applications. It said the meeting was attended by a Senior Executive Planner and an Executive Planner and that there were no Area Roads engineers present. It said there were no contemporaneous notes or minutes taken of the pre-planning meeting. It said it is standard practice that notes and minutes of pre-planning discussions are kept of all pre-planning meetings but that this was not done on this occasion.
The Council said that the request for a pre-planning meeting was made to the Executive Planner by telephone initially. It said that the meeting was then confirmed by email. It said that initial searches of email accounts did not result in those emails being located. It said that staff were asked to do a further review on any archived emails that there may be associated with the pre-planning meeting in the course of this review, and following a further search by IT, two relevant emails were located. These emails were released to the applicant in the course of the review. The Council also said that as the pre-planning meeting was held at its premises, there were no expenses incurred and therefore no records of this nature exist.
In relation to the second matter, the relevant Council official said he received a telephone call from an agent of the named individual who wanted to discuss An Bord Pleanála’s decision on an earlier application. He said this was a brief telephone conversation and that the agent was advised that any new application for the quarry development would need to have fully addressed the refusal reasons stated by the Board. He said there were no contemporaneous notes kept of this telephone conversation.
Following receipt of the applicant’s further submissions wherein he indicated that the Council’s Road Section had been involved in the matter, the Investigating Officer sent further queries to the Council. In response to these queries, the Council indicated that further emails relating to the arrangement of a meeting between its Roads Section and an agent of the named individual had been located following searches undertaken in its Roads Section. Those records were released to the applicant. The Council said the emails indicate the setting up of this meeting and the revised drawings that resulted from that meeting. It said the items identified by the Roads Section to the applicant were the same as the report supplied by Roads to the Planning Section as their requirements for this development. It said this report was subsequently uploaded to the Council’s website under the planning application.
The Council said two engineers from the Roads Section were requested to carry out searches for contact between Council officials and agents of the named individual relating to the proposed re-opening of a quarry. It said that the two engineers were asked to search for any communication, phone calls, diary entries, letters or reports regarding communication with the named individual or his agents. It said both carried out searches of their email records using the named individual’s name, along with the names of the agents, the name(s) of the quarry, and the name of the relevant agency. The engineers said they retain a diary for the purpose of mileage expenses claims only and that confirmation of meetings are retained via their work emails. The Council said the Administrative Officer in the Roads Section confirmed that no files are opened on Planning Applications by the Roads Section, and therefore, no searches were conducted by Roads Administration in this area.
The Council added that its Environment Section made three submissions by email and hard copy to the Planning Section with regard to the planning applications but that no meetings were held with the named individual or his agents.
On the matter of diary entries and phone records, the Council said that the Senior Executive Planner and the Executive Planner checked their mobile phones and that there was no record of any contact with either the named individual or his agents via mobile phone and that contact in relation to pre-planning meeting was conducted by email. It said its Finance Section contacted its service provider to search their own call records and that the service provider was unable to retrieve call records. The service provider said that, due to GDPR, mobile phone records can only be retained for two years. The Council said that as the period stated in the FOI request exceeds this timeframe, the service provider no longer has access to these records. It said that the landlines have changed service provider and therefore there would not be any records relating to calls conducted via landline numbers. The Council said that the staff members involved in the pre-planning meeting confirmed that no entry was made in their diaries.
In relation to meetings at the application site, the Council said that it, in its role as the planning authority, would not usually contact the planning applicant to gain access to the application site. It also said that it had not contacted the named individual in relation to the site inspection of the quarry application site. It said that its usual practice is that site inspections are undertaken by the relevant case officer and that neither the planning applicant nor third parties are pre-notified of the time or date of the site inspection.
Section 15 of the Act, which provides for the refusal of a request on a number of administrative grounds, in an express acknowledgement that there are limits to the measures an FOI body must take and the resources it must expend to process FOI requests. For example, section 15(1)(c) allows for the refusal of what are commonly referred to as voluminous requests, while section 15(1)(g) provides for the refusal of frivolous or vexatious requests. The provision at issue in this case, section 15(1)(a), limits the steps an FOI body must take to locate records sought to “all reasonable steps”. It does not require an FOI body take extensive, unreasonable steps in an effort to locate all records sought. It is not reasonable, in my view, to expect an FOI body to carry out forensic searches such as those suggested by the applicant. Such searches would, in my view, go beyond what would generally be regarded as “all reasonable steps” for the purposes of compliance with section 15(1)(a).
It is also relevant to note that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. It seems to me that in this case, the applicant was essentially seeking to establish what contacts took place between the Council and the named individual and/or his agents in relation to the proposed reopening of the quarry. Such a request would, in my view, reasonably include written or email correspondence, records of telephone and face-to-face contacts, potentially diary entries etc. If the applicant had in mind other specific types of records that he expected to be included in his request, such as travel and subsistence claims, it was open to him to identify them, pursuant to section 12(1)(b). It is not reasonable, in my view, to expect the Council to assume that any and all such records would be included in his request. There is an onus on the requester to identify the records sought.
In this particular case, while I fully accept that the Council did not take all reasonable steps to ascertain the whereabouts of relevant records during its initial processing of the request, I am satisfied that it has, at this stage, taken all reasonable steps. Having regard to the details of the Council’s submissions as outlined above, it seems to me that it has contacted the relevant sections and relevant staff members that it might expect to have had contact with the parties identified and that adequate searches have been taken for the various types of records that would indicate contact between the relevant parties. It has also explained why it does not hold certain records the applicant believes should exist. I am satisfied that there is no additional evidence before me to suggest that further specific searches are warranted in this case.
According I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further records other than those released to date on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 15(1)(a) of the FOI Act, to any further records, other than those released to date, of evidence of contact between any official or officer of the Council, present or past, or any agent acting on its behalf, and a named individual and/or his agents concerning his proposed re-opening of an abandoned quarry at a named location.
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.