Case number: OIC-121905-T9Z9M1
9 August 2022
In an email dated 14 September 2021, the applicant submitted a request for certain records relating to property adjacent to the University campus of which he said he was a part-owner. He provided the University with a map of the University campus and surrounding properties, including particular named lands marked with blue hatching, prepared by named architects that he noted were connected with the University, on which the particular named lands were referred to as “acquired” on the legend. He sought access to copies of all correspondence between the University and any third parties relating to the potential sale to the University of the particular lands. He said his request included any correspondence with the architects who prepared the map, any records detailing who instructed the architects to prepare this map, correspondence with the registered owner of the land in trust or any solicitors or agents acting on their behalf, correspondence with a named individual or his company, and any correspondence with a named county council.
In a decision dated 18 October 2021, the University refused the request under section 15(1)(a) of the Act on the ground that no relevant records could be found. It noted that a range of keywords specified in the applicant’s request were used to undertake searches by relevant Offices within the University. The applicant sought an internal review of the University’s decision on 12 November 2021, noting that a newspaper article had since been published detailing a ‘University Town’ plan indicating a proposed expansion of the campus that included his lands. He argued that planning for a project of such magnitude would have commenced several years ago and he referenced the architects map from 2006. He included a list of additional keywords, including named individuals, he believed would assist the University in locating relevant records. The applicant and the University exchanged further correspondence between 18 and 22 November 2021 in relation to the scope of the applicant’s request. On 13 December 2021, the University purported to make its internal review decision, in which it affirmed its original decision.
On 18 November 2021, the University contacted the applicant and informed him that it regarded his request for internal review as comprising a broader request than the one he had originally submitted as it named additional parties not originally named. In response, the applicant argued that the list of names was provided simply to assist the University in identifying the records sought in his original request.
On 13 December 2021, the University affirmed its refusal of the request under section 15(1)(a). No reference was made to the additional keywords provided by the applicant. On 10 March 2022, the applicant sought a review by this office of the University’s decision. In the course of screening the application for review, the University informed this Office that the internal review decision had not been made by a member of its staff of a higher grade than the original decision maker, as required by the FOI Act. Accordingly, we asked the University to arrange for the original decision to be reviewed by a staff member of appropriate grade. A revised internal review decision issued on 19 April 2022, wherein the original refusal of the request was affirmed.
During the course of the review, the University made a submission to this Office wherein it provided details of the searches undertaken in an effort to locate relevant records and of its reasons for concluding that no relevant records exist or could be found. The Investigating Officer provided the applicant with those details and she invited the applicant to make a further submission on the matter. The applicant made further submissions.
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 University as set out above and to 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.
The scope of this review is concerned solely with whether the University was justified in refusing access, under section 15(1)(a) of the Act, to copies of all correspondence between the University and any third parties relating to the potential sale to the University of particular named lands on the ground that no relevant records exist or can be found.
Section 15(1)(a) of the Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.
As I have outlined above, the University provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
In summary, the University said that records relating to acquisition of property are retained indefinitely. It provided details of the searches that took place in its electronic systems and hardcopy files in specified areas of the University. It said that as the request focused on records relating to ‘potential acquisition’ of land that may have been exchanged between the University and specified third parties, searches for electronic and hard-copy records were undertaken in the following offices;
• Buildings and Estates Department;
• Office of the President;
• Files of President Emeritus John O’Connor;
• Office of the Director Management, Planning & Reporting;
• Office of the Chief Operations Officer;
• Office of the Chief Corporate Officer;
• Chancellor of the University
The University said that in the event that a record relating to a potential acquisition existed, it would be held within one of the above areas. The essence of the University’s argument is that it holds no relevant records of correspondence relating to the purchase of the lands at issue as it has not sought to acquire the lands and currently has no interest in doing so. It said that while it holds similar maps of the campus and its surrounds to the map the applicant provided, these maps do not include references to the blue hatched area in the map provided as being a site that the University has identified for potential acquisition. It noted that the legend in the map provided with the FOI request refers to the hatched blue site in question as “Acquired”. However, it said it was not aware of the origin of the provided map nor the background to the reference to “acquired” land in the map legend.
The applicant contended that the Development Map he obtained from the newspaper article showed the extension in question was clearly prepared by a professional Firm of Architects and they were presumably commissioned by the University to carry out this work. He said that it can be reasonably assumed that the PR Department of the University provided the relevant information to the newspaper for the purposes of the article in question. He said that if the article was correct that a 260-acre extension was being considered, there should be records from planning meetings between two county councils and the University, given the scale.
In response to the applicant’s contentions, the University said that its position that no records exist or can be found remained the same. By way of background, it said an application for the designation of lands adjoining the north campus of the University as an Economic Strategic Development Zone (SDZ) was submitted jointly through a University and Clare Economic Development Agency Designated Activity Company (DAC) in February 2022 and this application remains under consideration. It said that additional information on this application is available in the public domain on its website. As such, it said records are held by the University that include information relating to this SDZ submission and related preparatory records. However, it said that these records do not refer to any proposal to acquire lands referenced in the original FOI request or any land that may fall within the boundaries of the SDZ application. It said that the “expansion” referred to in the newspaper article does not envisage that any land will be acquired by the University. It said that the project, in the event that it progresses, will be industry-led and the University will not expend capital on the proposed project.
The University added that it did not contribute to the newspaper article highlighted by the applicant in any way (either by the provision of information published in the article or of the published image). It said the project referred to in the newspaper article will be conducted, if at all, by the private sector over time to come. It said that it also confirmed that no pre-planning meetings have taken place with either of the county councils. It said that the map/drawing contained in the newspaper article originated from the University of Limerick Foundation, which it said is a private entity separate to the University.
In the circumstances, and having considered the details of the searches undertaken by the University and of its explanation as to why no records could be found, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that the University was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for copies of all correspondence between the University and any third parties relating to the potential sale to the University of particular named lands on the ground that no 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 University to refuse access, under section 15(1)(a) of the Act, to copies of all correspondence between the University and any third parties relating to the potential sale to the University of particular named lands on the basis that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
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.