Case number: OIC-107231-X8K6C5
3 August 2021
The applicant acted through his solicitor in this FOI process and references to the applicant may be taken as references to his solicitor. In a request dated 22 February 2021, the applicant sought access to records showing the sequencing of traffic lights and any malfunction at a specified date and time at a particular junction where a road traffic accident had taken place.
On 19 March 2021, the Council refused the request under section 15(2) of the FOI Act on the ground that the records sought are available from the Council’s traffic maintenance contractor upon payment of a fee. The applicant sought an internal review of that decision on 26 March 2021, following which the Council affirmed its original decision.
On 6 May 2021, the applicant sought a review by this Office of the Council’s decision. He argued that the fees charged for reports of the type sought are disproportionate and serve as a barrier to the right of access to information held by the Council. He noted that Fingal County Council charges considerably less for a similar service.
During the course of the review, the Investigator notified the applicant of her view that sections 15(1)(a) and 17(4) of the FOI Act were relevant as the question arose as to whether the records sought by the applicant are actually held by the Council (or its contractor) or would have to be created to respond to the request. She invited the applicant to make a submission of the applicability of those sections. No such submission has 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 submissions made by the applicant and the Council and to correspondence between the applicant and the Council. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing to grant the applicant’s FOI request for records showing the sequencing of traffic lights and any malfunction at a specified date and time at a particular junction
It is important to note at the outset that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. In light of the “de novo” nature of our reviews, I am satisfied that it is appropriate to consider the applicability of section 15(1)(a) of the Act in this case, notwithstanding the fact that the provision was not relied upon by the Council as a ground for refusing the request in the first instance.
Section 15(1)(a) provides that a request may be refused where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. It is important to note 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, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Under section 17(4), where a request is for information contained in more than one record held by the FOI body on an electronic device, the body must take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where such reasonable steps result in the creation of a new record, that record is deemed, for the purpose of considering whether or not that new record should be released, to have been created on the date of receipt of the FOI request. It is important to note that the reasonable steps to be taken do not go beyond searching for and extracting the information and do not include analysis or processing of information in order to compile the information sought.
During the review, the Council was asked to provide details of the steps involved in searching for and extracting the records requested by the applicant. A detailed account was provided and was sent by the Investigator to the applicant for comment but no response was received.
In summary, the Council explained the following: the system log must first be extracted which is done either through visiting the site in question and extracting it from the onsite controller, or through the Council’s Sydney Coordinated Adaptive Traffic Management System (SCAT). This system log must then be checked for codes and timestamps. The codes are associated with a considerable number of operational elements, both faults and normal operations, and the codes must be checked to see if there are any associated with a fault, how long that fault occurred, and whether that fault could have affected the operation of the traffic signals. If a fault is identified that could have impacted the operation of the traffic signals, the relevant codes are then examined alongside the sequencing and phasing of the traffic signals to determine what, if any, effect this could have had on the signals, traffic, and vehicles at the time identified in the request.
Essentially, the Council’s position is that to provide the records requested by the applicant, it is not simply a matter of providing the output from any single system but rather the contractor must instead interpret and assess output from the relevant systems and from that output, develop a report containing information of the type sought. I am satisfied that the steps required to prepare such reports go beyond the reasonable steps envisaged in section 17(4)(a) of the Act.
Accordingly, I find that the records sought are not held by the Council or its traffic maintenance contractor, for the purposes of the FOI Act. Instead, I am satisfied that the Council’s contractor provides a service whereby reports containing the type of information sought are prepared following analysis of relevant information gathered from the relevant systems. Furthermore, the question of whether or not the fee charged for the service in question is reasonable is not a matter for this office to consider. I find that section 15(1)(a) of the FOI Act applies in this case. Having found that section 15(1)(a) applies, I do not need to consider the applicability of section 15(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse to grant access to the records sought under section 15(1)(a) of the Act on the ground that the records sought do not exist.
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.