Case number: OIC-111596-B7N6V5

Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, further records coming within the scope of the applicant’s request for records relating to a road that crosses his land on the ground that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken

8 April 2022

Background

In a request dated 13 April 2021, the applicant submitted a request to the Council for information pertaining to what he described as an “alleged road” that crosses his lands. He sought “details as to measurements and engineers reports prior to the laneway being adopted”. He also sought “details of the Council meeting including Councillors who voted to adopt the laneway” and details of its “inclusion in subsequent roads budgets”.  

On 13 May 2021, the Council purported to grant the request and provided a copy of an email that was created on the same day. In the email, a Council official stated that he had checked the Council’s records and that the only record held is the inclusion of the road on a schedule and map of public roads.

The applicant sought an internal review of that decision, wherein he said that the road was the subject of a notice of motion to the circuit court in which he was named as a defendant. He said the judge made an order declaring the roadway a public roadway. He alleged that when asked to clarify the extent of the roadway, the judge was unable to do so and indicated that it was the applicant’s responsibility to get that information. He asked the Council to provide seven specific pieces of information relating to the roadway. On 14 June 2021, the Council released an additional email created that same day, wherein the same official said the Council has “no further records and no dates etc.”

On 11 August 2021, the applicant applied to this Office, through his legal representative, for a review of the Council’s decision. In the application for review, the applicant’s legal representatives explained that the applicant was in a dispute with his neighbour and they enclosed a letter they had received from the Council dated 26 February 2021 wherein the Council confirmed that a road highlighted on an attached map was under its charge. They argued that additional relevant records must exist.

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 the submissions of both parties made during this review.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In essence, the Council’s position is that it holds no relevant records coming within the scope of the applicant’s request. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought cannot be found or do not exist. Accordingly, this review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a), the applicant’s request for certain records relating to a specified road on the ground that no relevant records exist or can be found.

Preliminary Matters

Before considering the substantive issue arising, I wish to make a number of preliminary points.

First, subject to other provisions of the Act, section 13(4) requires FOI bodies and this Office to disregard an applicant’s reasons for making a request. This means I cannot have regard to the applicant’s motives for seeking access to the records at issue

Second, this Office has no role in adjudicating upon how FOI bodies carry out their functions generally or in investigating complaints against FOI bodies. The scope of the review is confined to considering whether the Council was justified in refusing access to the records sought.

Analysis and Findings

It is important to note at the outset 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.

It is also important to note that the scope of this review is confined to records sought by the applicant in his initial FOI request. It cannot be extended to consider any additional records the applicant may have sought when applying for an internal review of the Council’s initial decision or in his application to this Office for a review of the Council’s decision.

Section 15(1)(a)

Section 15(1)(a) of the 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. The Commissioner’s 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 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.

During the course of the review, it became apparent to this Office that certain discrepancies had arisen between the parties as to the exact location of the road that was the subject of the applicant’s request. For example, the applicant noted that the orientation of the road was incorrectly described as going westward along the foreshore whereas the road that was the subject of his request does not run westwards for 480 metres but is only about 100 yards in length and runs north/south.  Moreover, the Council said that works had been carried out to the road where a surface dressing was applied in 2015 while the applicant refuted this and had no knowledge of this work ever occurring, notwithstanding the fact that the road crosses his land.

I note that the Council suggested that the most logical way to resolve the issue would be for the applicant to submit a new FOI request accompanied by a map of the precise road, which would enable a comparison with the online mapping system and would definitively verify if the road was deemed a public road. The Council said that if it transpired that it is a public road, it would be possible to establish the correct road number and further checks could be conducted to see if relevant records are held that would indicate when the road was taken in charge.  However, the applicant did not accept the Council’s suggestion to this course of action.

Given the uncertainty as to whether the Council have, in fact, identified the correct road that was the subject of the applicant’s request, I am simply not in a position to determine that the Council has taken all reasonable steps to ascertain the whereabouts of relevant records. Accordingly, I consider that the appropriate course of action in this case is to annul the Council's decision and direct it to undertake a fresh decision-making process in respect of the applicant's request.

In doing so, I would draw attention to section 12(1) of the FOI Act which requires that a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, and to the corresponding obligation on the Council, under section 11(2), to give reasonable assistance to persons making requests for records. As such, before the Council commences a fresh consideration of the request, I would suggest that the parties seek to clarify the precise location of the road at issue and the precise records sought before doing so.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse access, under section 15(1)(a) of the FOI Act, to any further records relating to a road that crosses his land and I direct it to consider the request afresh.

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