Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for information relating to certain housing purchased by the Council, on the ground that no relevant records exist
30 September 2021
In an FOI request the Council received on 23 June 2021, the applicant sought access to “the breakdown numbers of any/other/all units and the breakdown numbers of medical/adapted housing purchased by Louth COCO e.g. St John of Gods Drumcar complex, St Brigid’s complex etc from 2004 to date by Louth COCO”. The Council issued its decision on 20 July 2021 wherein it refused the request under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist. The applicant sought an internal review of that decision on 9 August 2021, following which the Council affirmed its refusal of the request. The applicant sought a review by this Office of the Council’s decision on 31 August 2021.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to the communications between this Office and both the applicant and the Council on the matter.
Scope of Review
This review is concerned solely with whether the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request on the grounds that no relevant records exist.
Analysis and Findings
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. During the course of the review, it became evident that the Council’s interpretation of the FOI request differed to the Investigator’s interpretation. The Council explained that as it had never purchased any properties/units from the named organisations, it determined that no relevant records existed and refused the request under section 15(1)(a). The Council acknowledged that, looking at the wording of the request again, it may have taken an overly narrow interpretation and speculated that perhaps what the applicant was looking for was records showing the number of units purchased by the Council and then subsequently allocated to people on the housing list with a disability or medical need. It said it could carry out further searches for such records.
The Investigator contacted the applicant for clarification, following which the Investigator concluded that she was looking for the number of people with disabilities housed by the Council from 2004 to date and the number of housing units purchased by the Council specifically for people with disabilities. If that indeed is the information sought, then it appears to me to be inconsistent with the wording of the request actually submitted.
Nevertheless, the Council accepts that it took an unduly narrow interpretation of the request and said it is willing to conduct further searches for the records sought. As such, I consider that I have no option but to find that the Council was not justified in refusing the request under section 15(1)(a). I consider the most appropriate course of action to take is to annul the decision, the effect of which is that the Council must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision.
For the benefit of the parties, I would like to draw their attention to a number of relevant provisions of the Act. First, section 12(1)(b) provides that a request for records must contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps. As such, the applicant should make every effort to ensure that the request is sufficiently specific to accurately reflect the information or records sought. A vague or unclear request runs the risk of being misinterpreted or, indeed, of being refused if it does not contain sufficient particulars to allow for the identification of the record sought.
Secondly, under section 11(2) of the Act, an FOI body must give reasonable assistance to a person who is seeking a record under the Act in relation to the making of an FOI request for access to the record. As such, if the Council is in doubt as to the precise nature of the information sought by the applicant, it should first seek to engage with the requester to clarify the request, thus avoiding possible issues at a later stage concerning the interpretation of the scope of the request.
Accordingly, I recommend that the Council seeks to engage with the applicant in the first instance to clarify the precise nature of the records sought before processing the request afresh in this case.
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.