Case number: OIC-135368-S4C7G4

Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relating to a change in zoning for two specified sets of land on the ground that no further records exist or can be found after all reasonable steps have been taken to locate them

 

10 August 2023

 

Background

On 30 May 2022, the applicant sought access to all correspondence, documents and records, including proposals, submissions or representations, relating to the decision to change the zoning for two specified parcels of land. For ease of reference, I shall refer to the lands in question as Site A and Site B. Site A had been rezoned from A2 New Residential to G1 Community Infrastructure and Site B was rezoned to A2 Residential.

In a decision dated 21 June 2022, the Council refused the request under section 15(1)(d) on the ground that planning decisions and all associated documents were published on an online planning portal. It provided links to various documents it considered relevant to the applicant’s request. The applicant sought an internal review on the basis that the zoning of the land in question appeared to have changed between 2013 and 2019, and all of the links provided related to documents dated from 2019 onwards. The Council affirmed its original decision on the same basis. It also provided some information relating to the re-zoning process and said that it appeared that no records existed relating to the re-zoning of the particular sites in question. On 11 February 2023, the applicant applied to this Office for a review of the Council’s decision. He subsequently made submissions to this Office in support of his application.

During the course of this review, the Investigating Officer notified the Council of her view that section 15(1)(a) of the FOI Act was relevant as the applicant was of the view that additional records relating to his request should exist. The Council provided submissions to this Office in this regard. The Investigating Officer provided the applicant with details of these submissions, including the Council’s reasons for concluding that additional relevant records do not exist. The applicant was invited to make further submissions, however, other than expressing concern at the lack of records relating to the decisions to change the zoning of the sites in question, to date he has not done 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 submissions made by the applicant and to the submissions made by the Council in support of its decision. I have also had regard to the records publicly available. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant has not sought a review of the Council’s reliance on section 15(1)(d). However, he remains of the view that additional records should exist relating to his request. The Council’s position is that no further records relating to his request exist or can be found, other than those available publically. This review is therefore concerned solely with whether the Council was justified in refusing to release additional records relating to the applicant’s request under section 15(1)(a) of the FOI Act.

Preliminary Matters

It is important to note as a preliminary matter that 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 public interest (not applicable in this case). 

In his correspondence with this Office, the applicant raised a number of matters concerning the Council’s decision-making process regarding re-zoning and expressed concerns relating to the use and value of the sites after they had been re-zoned. It is also important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined to reviewing the Council’s decision on the applicant’s FOI request. 

Analysis and Findings

Section 15(1)(a)

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 their decision and 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.

As noted above, the Council provided this Office with extensive details of the searches it said it undertook in an effort to locate relevant records and its reasons for concluding that no further records exist or can be found. As also noted above, the Investigating Officer provided the applicant with an outline of the Council’s submissions in this regard. 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.

By way of background, I understand that each local authority is required to prepare six-year County development plans, which start with a Pre-Draft Consultation process. Among other things, a development plan sets out the Council’s objectives for the zoning of land in the relevant timeframe. In its submissions to this Office, the Council said that the pre-draft stage started in December 2016 for the current plan. The Council said that this stage of the plan includes public consultation, the Chief Executive’s report on any submissions received during consultation, directions from elected members on the draft plan to the Chief Executive and the preparation of the draft plan.

In its submissions to this Office, the Council provided excerpts from the Chief Executive’s Report dated November 2019, setting out a Notice of Motion (NoM) submitted in relation to Site A. The NoM asked that 60% of the lands at Site A be retained as A2 New Residential. I note the Chief Executive’s response stated that the zoning for the site had been changed from A2 New Residential to G1 Community Infrastructure, although it did not say when the re-zoning had occurred. The Council also provided an excerpt from Book 3 of the Chief Executive’s Report on Public Submissions, published on 13 August 2020. The excerpt relates to a submission asking that the A2 Residential zoning be reinstated on Site A. The Chief Executive again referred to the change of zoning, but did not provide any information as to when or how the decision was made.

In its submissions to this Office, the Council stated that the change of zoning for Site A took place in the Draft County Development Plan in 2019. It said that the draft Development Plan was presented to and provided to the elected members for their consideration in September 2019 and they were given time to consider the plan and submit their NoMs. The Council’s position is that all correspondence, proposals, etc, relating to the plan have been published and that there were no records of meetings or correspondence during the technical drafting of the draft plan relating to this particular parcel of land. It also said that searches were carried out in relation to Site B, but that no submissions were made on this area/zoning and no NoMs were made in relation to these lands at any stage in the Development Plan process. Accordingly, it indicated that it would not expect to locate any relevant records.

In relation to records dating between 2013 and 2019, the Council said that the zoning for the sites in question was not changed as part of the 2013-2019 plan. Nonetheless, it said that it checked the files relating to the previous County Development Plan for relevant records and none were found. The Council said that relevant staff members, including the two Senior Planning Officials, were asked to conduct searches of their email accounts for records relating to the sites in question, but that none were found. It also said that the Forward Planning Team confirmed that it held no hardcopy records as all records were held electronically on the website. It also stated that no relevant diary entries were listed.

In his submissions to this Office, the applicant indicated that he was of the view that re-zoning of land by the Council could not take place without being documented. He particularly referred to the background and ownership of the lands in question and contended that additional records relating to the decisions which he believed had been made before 2019 should exist. However, he has not provided any evidence to this Office to show that further searches are warranted.

The Council’s position is that, given the amount of land parcels that were zoned and de-zoned as part of the County Development Plan process, it would have been “too voluminous” to document minutes for each folio across the county. It also said that, due to the volume, complexity and the huge level of public engagement in terms of submissions received, there was only one online platform for public submissions where all the material was collated and recorded.

I have had regard to the extensive submissions provided by the Council, which outline the searches that were undertaken to locate further records relating to the applicant’s request and to its explanation for concluding that no additional records exist. In the absence of evidence to suggest that further searches should have been undertaken, it seems to me that the Council has taken all reasonable steps to locate the records sought. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

Accordingly, I find that the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records relevant to the applicant’s request on the ground that no further 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 access, under section 15(1)(a) of the FOI Act, to additional records relating to the applicant’s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

 

Sandra Murdiff
Investigator