Case number: OIC-124697-Y4M3S5
22 August 2022
References to the applicant in this case include references to another party to her request.
The Office’s decision in Case No. OIC-107276-G0B7S7, dated 3 September 2021, concerns the Council’s refusal of the applicant’s request on the basis that a deposit for search and retrieval fees was not paid. It summarises how the applicant’s FOI request to the Council of 6 August 2020 was subsequently narrowed. I do not intend to set out the relevant details here other than to say that, on 20 November 2020, the applicant specified that she sought access to the following records:
“4 No. fellings on lands commonly referred to as "Salthill Park":
and 1 No. felling at Dr. Mannix Avenue
All records held by Galway City Council regarding the issuing of Mr. Z's letter referring to a Bequeath and the claim of ownership of lands by Galway City Council”.
Mr Rafferty, Senior Investigator, annulled the Council’s decision on the basis that it had not complied with the Act’s mandatory requirements concerning the timeframe for seeking the relevant deposit. He directed the Council to conduct a fresh decision making process on the refined request of 20 November 2020.
Ultimately, the Council issued a decision on the substance of the refined request on 25 February 2022 (Council ref no FoI 125-21). It part-granted the request and withheld certain details under sections 29 (deliberative processes), 31(1)(a) (legal professional privilege), 37(1) (personal information), and 42(m) (identity of a source of information given in confidence).
In her internal review application of 25 March 2022, the applicant queried the adequacy of the Council’s searches for various records and its application of sections 29, 31(1)(a) and 42(m) to particular records. She referred to previous correspondence from the Council, to the effect that the request for records concerning the Bequeath was not valid because such records pre-date the commencement of the FOI Act, and to related comments in Mr Rafferty’s decision. She said that she was entitled to access to these pre-commencement records under section 11(5) of the FOI Act. She sought certified transcripts of records which she said were illegible. Finally, she asked for details about and/or commented on the content of various records.
The Council’s email to the applicant on 7 April 2022 said that it would not answer questions about records, and invited her to make a valid internal review application. The applicant subsequently contacted this Office seeking a review of the decision on her request. We subsequently asked the Council to notify the applicant of its position on those elements of her internal review application that relate to records covered by her FOI request.
The Council’s letter to this Office of 3 June 2022 summarises difficulties it says that it encountered in dealing with the applicant in its fresh processing of the request. It says that the work involved was substantial and voluminous, and interfered with the work of various functional areas. It says that it considered the application for review to be invalid because it sought answers to questions, legible transcripts, fresh information not covered by the request, and amendment of/additions to records. It says that the age of certain records is such that it cannot provide legible copies thereof, and that the applicant did not provide sufficient argument for it to consider the relevance of section 11(5) of the FOI Act.
The Council says that having engaged with the applicant about the validity of the application, it offered her a chance to make a valid application, and refunded the internal appeal fee when there was no such engagement. It says that it considers the application for internal review to be vexatious for the purposes of section 15(1)(g) of the FOI Act, on the basis that it was an unreasonable action and was made in bad faith.
The Council’s letter to the applicant of 3 June 2022 does not refer to section 15(1)(g) or the voluminous nature of the request. Instead, it says that the Council is “happy to conduct a de novo search on the original decision made on FoI 125-21” but that it will not answer questions, provide transcripts (certified or otherwise), add fresh information to extant records, create records, or provide records not sought in the original FOI request. It says, should the applicant wish to continue with a fresh review, that she should do so within four weeks and pay the required fee.
The applicant was not satisfied with the Council’s position. She confirmed on 7 June 2022 that she seeks a review by this Office of the matter.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out the review, I have had regard to the above correspondence and to communications between this Office, the Council and the applicant, as well as to the provisions of the FOI Act.
The scope of this review is confined to whether the Council’s decision on the applicant’s request is justified under the provisions of the FOI Act.
Insofar as the applicant takes issue with the involvement of certain Council officials in considering her request, it should be noted that a review under section 22 cannot extend to or take account of matters more appropriate to an investigation under section 44 of the FOI Act. Section 44 gives the Commissioner the power to conduct investigations into the practices or procedures of FOI bodies for the purposes of compliance with the FOI Act. In any event, on the basis of the information before me at this time, I do not consider this to be an instance where an investigation into how the Council dealt with the applicant’s request, further to its FOI practices and procedures, appears to be warranted.
This Office’s Investigator put it to the Council that parts of the internal review application were valid, such as those disputing the adequacy of the Council’s searches and the apparent refusal of pre-commencement records. She also asked whether the Council had proceeded with an internal review of its searches.
The Council confirms that it has not taken any steps further to the correspondence of 25 March 2022. Its position is that the circumstances of the original request and its dealings with the applicants makes it a complicated matter. It also expresses concern that too many new and invalid issues have been raised at review stage.
As a body that has been subject to the FOI Act since 1998, the Council should be aware of both its requirements and parameters. While there may well be a complex history to this FOI request, and while the internal review application is lengthy and detailed and raises issues not appropriate to the FOI process, none of this relieves the Council of its obligations under the FOI Act. In short, it was required to identify, and carry out an internal review on, all valid elements of the applicant’s correspondence to it of 25 March 2022 once the required fee had been paid. Furthermore, the FOI Act does not provide for an FOI body to refuse to accept a valid internal review application, either on the basis that it is vexatious or for other reasons.
In my view, it would not be possible for this Office to review the substance of the Council’s decision in any kind of reasonable timeframe, particularly given that the Council has not yet carried out any examination of its own searches. In the circumstances, the most appropriate decision for me to make is to annul those specific parts of the Council’s decision that are disputed in the applicant’s internal review application of 25 March 2022, and to direct it to make a fresh decision (i.e. on only those matters) in accordance with the provisions of the FOI Act. The applicant has a right to seek an internal review, and a subsequent review by this Office, of the Council’s fresh decision.
It is for the Council to identify all valid elements of the internal review application of 25 March 2022. In general, however, I note that it queries the adequacy of the Council’s searches for relevant records (section 15(1)(a) of the FOI Act refers), and its decision to withhold certain records under sections 29, 31(1)(a) and 42(m) of the FOI Act.
The internal review application also takes issue with the Council’s approach to the requested pre-commencement records. I note that Mr Rafferty’s decision in OIC-107276-G0B7S7 commented on this matter for the benefit of the parties, notwithstanding that it was not part of his review. He explained why it is incorrect to suggest that pre-commencement records are not covered by the Act and that a request for such records is invalid. He also said that where an FOI body is of the view that section 11(5) does not apply to a request for pre-commencement records, it should make a decision to refuse the request on the ground that the Act does not apply to the records sought. Given this clear commentary, it is surprising that the Council’s decision did not properly address the matter of the pre-commencement records. I expect its fresh decision to deal with the matter appropriately.
Furthermore, the internal review application also seeks certified transcripts of various notations. Both parties should be aware of the provisions of section 17 of the FOI Act. In general, section 17 concerns the manner of access to records and enables a body, in certain circumstances, to give access to a record in a form other than that specified in an original request. Furthermore, the provision does not require the provision of certified transcripts/copies/ etc.
Finally, the applicant should bear in mind that section 15(1)(a) of the FOI Act requires reasonable, not exhaustive searches for records. In general, this Office takes the view that the Act does not require bodies to account for each gap, or perceived gap, in a set of records. An FOI body is not required to search for records not covered by an FOI request in the first place. Furthermore, the FOI Act does not require an FOI body to respond to particular queries that a requester may have in relation to any records released.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision of 25 February 2022 insofar as elements thereof are validly the subject of appeal for the purposes of the FOI Act in the applicant’s correspondence to it dated 25 March 2022. I direct it to carry out a fresh decision making process on the matters concerned.
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.