Decision
Ms X and Kerry County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-157045-P0P0X5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157045-P0P0X5
Published on
Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to its decision to make an Outdoor Recreation Infrastructure Scheme (ORIS) funding application for a specified project on the ground that no further records exist or can be found, and in redacting, under section 37(1) of the Act, certain information contained in the project application form
29 July 2025
This case has its background in an application made by the Council in 2021 to the Department of Rural and Community Development and the Gaeltacht (the Department) for funding under the Outdoor Recreation Infrastructure Scheme (ORIS) to upgrade a specified cliff walk. The Scheme provides funding for the development of outdoor recreational infrastructure.
In a request dated 23 July 2024, the applicant sought the reason for the Council’s decision to progress the ORIS funding application for the cliff walk in question without landowners’ agreement when it had been publicly stated that same was needed. She also requested all records related to making the decision, and the positions of those responsible for the decision and progression of this funding application. The Council subsequently engaged with the applicant regarding her request, and agreed the wording of her FOI request was for ‘[a]ll records to do with the decision to progress the 2021 ORIS funding application without landowners agreement and the positions of those involved in the decision and progression of this funding application’.
In a decision dated 16 October 2024, the Council granted access to four records, with certain information redacted on the basis that it was outside the scope of the request. On 17 October 2024, the applicant sought an internal review of that decision on the ground that she had not received all relevant records. The applicant asked a number of questions about the existence of further records in relation to the decision to progress the ORIS application. On 9 December 2024, the Council released further records to the applicant and provided responses to questions raised by the applicant in her request for an internal review. The Council refused access to further records under section 15(1)(a) of the FOI Act. On 27 February 2025, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, the Council released a copy of the ORIS application it submitted to the Department relating to the cliff walk in question. It redacted certain information contained in the application form under section 37 of the FOI Act. The Investigating Officer provided the applicant with details of the submissions of the Council wherein it outlined the searches it had conducted and its reasons for concluding that the further relevant records did not exist or could not be found. The Investigating Officer invited the applicant to make submissions on the matter, which she duly did.
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 outlined above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
While the Council argues that the ORIS application it submitted to the Department relating to the cliff walk falls outside the scope of the applicant’s request as it was only completed once the decision was made to progress the project application, I am satisfied that the application form falls within the scope of the applicant’s request for all records to do with the decision to progress the ORIS funding application and progression of the funding application. As noted above, the Council released a redacted copy of the application form during the course of this review. The applicant disputes the Council’s decision to redact information from the form under section 37 of the FOI Act. She also maintains that further records ought to exist.
Accordingly, this review is solely concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records on the ground that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts; and in refusing access to the information it redacted from the ORIS application under section 37 of the FOI Act on the ground that it is personal information of a third party.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Second, I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This means we have no role in examining actions taken by the Council in relation to the ORIS application process, the cliff walk, or any other related matter.
Finally, while the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
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 his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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.
Both the applicant and the Council made submissions to this Office in the course of the review. While I do not propose to repeat those submissions in full here, I can confirm that I have had regard to them for the purposes of this review.
In summary, the Council’s position is that further records would not exist due to the record-keeping practices involved in the process and the searches conducted did not result in any further records being located.
The Council said in its submissions to this Office that a summary of the decision-making process in relation to the 2021 ORIS applications made by the Council, which it said took place between 26 April 2021 and 14 June 2021, was as follows:
• The scheme application was announced in April 2021.
• The Tourism Section within the Council had a coordinating role engaging with Municipal Districts (MDs).
• MD staff proposed projects for consideration by the Senior Management Grants Team.
• Senior Management Grants Team considered the projects and recommended a list for the Senior Management Team.
• Senior Management team considered and approved projects for submission to the Department.
• Application forms were completed.
• Application forms submitted to the Department.
By way of background, the Council said that Municipal Districts (MDs) are the lowest level of the democratic process in Ireland, with both Elected Members and staff working on a daily basis within their communities. It said that the MD Teams develop potential projects in association with local communities, councillors and landowners, however, the decision-making process to progress projects takes place at a countywide level by the Senior Management Grants Team and ultimately the Senior Management Team.
The Council said that, in 2021, both Local Authorities and Local Development groups could submit projects to the Department for the Outdoor Recreation Infrastructure Scheme. It said that the Council did not request expressions of interest in 2021. The Council said that while a public call for expressions of interest from community groups regarding project proposals may take place, this did not happen in 2021 due to the challenges and presence of Covid-19. It said that project proposals were prepared in 2021 based on knowledge of community priorities highlighted by community groups and Council Elected Members historically. The Council said that community groups do not have a role in the decision-making process in relation to the progression of ORIS funding applications. It said that the role of community groups is limited to submitting potential projects for consideration (which as noted above, it said did not occur in 2021 due to Covid-19), supporting potential projects, and responding to clarifications from the Local Authority regarding potential projects if required. It said that community groups at times may also be responsible for delivery of these projects.
The Council said that the ORIS application process was as follows:
1. Municipal District (MD) Engineering and Administration staff identified proposals for projects within their locality that may be considered for inclusion in the application process. The Council said that, as part of this process, consideration would have been given to the availability of staff to deliver such projects, the timeframes for delivery and the match funding required. It said that the list of potential projects developed in the Municipal District would have come from staff’s knowledge and understanding of the issues raised within their local area. The Council said that the template of projects for consideration was then completed by MD Staff and submitted to the Community & Tourism Section who were coordinating the application process.
2. The Council said these potential projects were initially discussed at a meeting on 12 May 2021. It said the meeting would have included Senior staff within the Council including MD Officers/Engineers and Community & Tourism staff. The Council said this meeting would have discussed the outline and terms of the scheme, potential projects and potential barriers to delivery. It said that there are no minutes of this meeting, and this would not be uncommon.
3. It said that a template list of potential projects for consideration by the Senior Grants Management Team was prepared by the Community & Tourism Section. It said that record 10 released to the applicant is the Teams meeting request for a Senior Management Grants Team meeting with the attached potential projects for consideration.
4. The Council said that, following consideration, the Senior Grants Management Team recommended projects for consideration by the Senior Management Team. It said that there are no minutes of this meeting, which it said took place on 3 June 2021, and the record of the meeting is the action list of recommended projects for consideration by the Senior Management Team. It said that record 11 released to the applicant is correspondence between the Community & Tourism Section and the MD Staff advising them of the list of proposals going to the Senior Management Team for consideration.
5. It said that records 3, 4 and 13 relate to the approval by the Senior Management Team of projects to be submitted to the ORIS, and record 12 is from the Community & Tourism Section to MD staff advising them of the projects approved at the Senior Management Team meeting of 14 June 2021.
The Council said that applications were then prepared and submitted to the Department, which is the ultimate decision-maker regarding ORIS funding.
In relation to the searches conducted to locate records relevant to the applicant’s request, the Council said that, as part of the search, it engaged with the Community & Tourism Section who coordinated the application process. It said it engaged with both current staff and the staff member who would have coordinated the scheme at the time but is no longer in that section. The Council said that searches were carried out on the Tourism and Community section servers for the text ‘cliff walk’. It said that the Tourism Section’s file management processes meant a separate folder was held on their server related specifically to the 2021 ORIS Scheme. It said that all correspondence between a specified Municipal District and the Community & Tourism Section coordinating the grant was by email, and this had been retrieved and released to the applicant as part of the internal review decision. It said that the staff member coordinating the process at the time has searched emails to ensure all records in relation to the decision-making process were included.
The Council said that the records provided to the applicant outline the process as regards the ORIS as it operated in 2021. It said that the records include the initial proposals and the action list of projects that came through the decision-making process. The Council said it has a procedure in place regarding the processing of the ORIS. It said the procedure deals with the process rather than specifically the storage of records. It said that however, as set out above, the Tourism Section has a specific folder on the server for the 2021 scheme with multiple subfolders in place. The Council said it has records retention policies in place, and no records have been destroyed.
In relation to an Expression of Interest form that the applicant said should exist, the Council said that it engaged with the Community & Tourism Section, which it said stated there was no request for expressions of interest from the public made by the Council for the ORIS Scheme in 2021, for the reasons outlined above. It said that, in the searches carried out, no records have been found of involvement of a community group in the decision-making process. In this particular case, the Council said it had engaged with a representative of the landowner and the Council intended to carry out the proposed works. The Council said it had historically carried out maintenance works on the named cliff walk. It said the role of the community group named in the application form in this case was to support the project. It said that, as set out in the Notice of Motions of Elected Members at public Council meetings previously released, the cliff walk has long been identified as a priority project for the community. The Council said that, given all of the above, it is therefore not unusual that no correspondence has been identified with the community groups.
Following receipt of submissions by this Office from the applicant, in which she said that records of communication with community groups should exist, the Council was requested to provide further information on the reasons for which it had concluded no such further records exist or can be found. In response, the Council said that, following the recommendation of the Senior Management team to ‘progress the 2021 ORIS funding application’, verbal consultation by phone took place between the MD Officer for the specified Municipal District and the Community Groups. It said that both the local Development Company and the local Community Forum verbally confirmed their support of the application. It said that the former staff member confirmed no record of these conversations was created.
The Council said that, regarding the applicant’s position that she had not received any records showing how a motion at the municipal meeting progressed to a €220,000 grant proposal on a list of proposals to be considered by the Senior Grants Management Team, records 5 – 9 released as part of the internal review decision relate to this period of time and identify the engagement between staff in the Municipal District and the Tourism Section regarding suggestions for potential projects for consideration. It said that the staff in the Municipal Districts, through engagement with locals, councillors and community groups, are aware of where there is a potential need for investment within their communities, in order to provide facilities and enhance the quality of life of their communities. It said that technical staff have significant knowledge of the potential level of investment required to carry out basic remedial works, more enhanced improvement works or to create new infrastructure. The Council said that this project was initially considered for the Measure 2 project. It said that, as set out in its internal review decision, a detailed costing would only be prepared at application stage when the decision was made by the Senior Management Team to progress the project. It said that this did not happen.
The Council further said that there is no record of a costing for €220,000. It said a detailed costing would only be prepared once a decision was made to proceed with the application. It said that while a decision was taken to proceed with an application, it was for the lower grant amount of €20,000. The Council said that the costing for this is included on the application form submitted, a copy of which as noted above has been released to the applicant with some third-party information redacted. It said that MD Teams work within their communities and are often best placed in suggesting potential projects for consideration for many grants schemes. It said that the number of projects suggested across all Municipal Districts is well above the number of applications allowed. The Council said that the Senior Grants Management Team would consider potential projects under each measure and would consider them in the context of the overall county.
The Council said that record 6 released to the applicant shows a list of projects provided by the Executive Engineer in the specified Municipal District to the MD Engineer and Officer. It said the Executive Engineer reports directly to the MD Engineer. It said that record 7 contains correspondence that was copied to the MD Engineer. The Council said that, as part of its internal review decision, it released a number of Notices of Motion and Questions responded to as part of the MD meetings process in relation to the cliff walk. It said the MD Engineer is responsible for coordinating responses to Notice of Motions and Questions regarding operational/maintenance issues in the Municipal District. The Council said that the MD Officer and the MD Engineer may provide background information to the Senior Grants Management Team involved in the decision-making process. It said this could include cost estimates, benefits to the local community, capacity to deliver the project, delivery timeframes, etc. It said that the MD Engineer was engaged with on several occasions in relation to the processing of this FOI request. It said the MD Engineer has carried out searches, and the records held by the MD Engineer include records 6 and 7 provided to the applicant as part of the internal review decision. The Council said that this scheme is a very small element of the work of the MD office.
As noted above, following receipt of an update from this Office, which contained details of the Council’s submissions, the applicant made submissions to this Office. In those submissions, she said that she was satisfied that the Council has demonstrated it conducted reasonable steps to locate records. However, she was of the view that the application form should not have been excluded from the scope of her request and said it should be provided to her as a record relevant to her request. While the Council disputed the applicant’s view that the application form falls within the scope of her request, as noted above it subsequently released a copy of the application to her, with certain information redacted under section 37(1) of the FOI Act, which I will consider below.
Following the release of the application form, the applicant made further submissions to this Office. In these further submissions, the applicant said that references in the application form to a consultation with a named Community Forum and identification of a particular company as a Local Community Group indicated that community groups were directly involved in the application process. She said that this meant records of communication with community groups should therefore exist, and the Council had failed to search for or consider relevant communications with these groups that should have been included in the response to her FOI request.
As noted above, in its submissions to this Office the Council said that community groups do not have a role in the decision-making process in relation to the progression of ORIS funding applications. It said that the role of community groups is limited to submitting potential projects for consideration (which as noted above, it said did not occur in 2021 due to Covid-19), supporting potential projects, and responding to clarifications from the Local Authority regarding potential projects if required. The Council also said that both the local Development Company and the local Community Forum verbally confirmed their support of the application. It said that no record of these conversations was created.
Furthermore, the applicant asked that this Office instruct the Council to extend its search for records to include material created up to and including February 2023, arguing that there is clear evidence that the project remained active until that date. I note the Council’s ORIS application is dated 29 June 2021. In my view, the applicant’s request does not extend beyond the date on which the Council submitted its application. However, it is open to the applicant to make a fresh request to the Council for further records that post-date the application, if she wishes to do.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. 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. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
Having considered the submissions of both parties, I am satisfied that the Council has explained the decision-making process around the ORIS application in question, has outlined the records that exist and provided details of the searches it undertook to locate the records sought by the applicant. Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Council has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist or can be found. Accordingly, I find that the Council was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
The Council redacted the name, email address and telephone number of the contact person for the Local Community Group that was contained on the ORIS application form that it submitted to the Department, under section 37(1) of the FOI Act.
Section 37(1) provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that either (a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above.
In her submissions to this Office, the applicant said that the redacted information concerns an individual acting in an official capacity as company secretary of a registered company limited by shares. She said that information that relates to an individual acting in a professional or official role is not inherently personal and should not be exempt under section 37(1) of the FOI Act. The information at issue is the name, email address and telephone number of the contact person for the Local Community Group that was contained on the ORIS application form. I am satisfied that this is personal information of a third party that is exempt under section 37(1) of the Act.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information at issue.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person(s) to whom the information relates. I am satisfied that the release of the information in question would not be to the benefit of the individual concerned and that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the information at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of the release of records, i.e. in so far as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester’s reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the FOI Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI Bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In her submissions to this Office, the applicant said that the ORIS application involved public funding and the submission of incorrect information concerning landowner consent, and the public has a right to know who was involved in the application, especially where issues of accuracy, governance, and oversight arise. She said that public confidence in community-led schemes is reliant on transparency. In this context, she said that the public interest in release of the name clearly outweighs any right to privacy. She further said that, as the individual was company secretary of a registered entity, their name is publicly available through the Companies Registration Office (CRO). She said that redacting this name from an official grant application is inconsistent with that public availability and serves no clear purpose.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 of the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The applicant requested records to do with the decision to progress the 2021 ORIS funding application without landowners’ agreement and the positions of those involved in the decision and progression of this funding application. The Council released a number of records to the applicant including a copy of the application form that was signed by the Council’s Director of Service. The name of the Local Community Group and the Community Forum are contained in the copy of the form released to the applicant. In my view, releasing the contact name for the Local Community Group will add little to transparency around the application process. Bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the personal information at issue outweighs, on balance, the privacy rights of the individual concerned. In particular, I am not satisfied that any sufficient specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply in this instance. Accordingly, I find the Council was justified in refusing access to the name, email address and telephone number of the contact person for the Local Community Group under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act and to withhold the personal information contained in the ORIS application form under section 37(1) of the FOI Act.
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.
Richard Crowley
Investigator