Cinneadh
Mr. X and Louth County Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153728-M3J0P2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153728-M3J0P2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to records relating to a commercial agreement between it and a named private company
18 July 2025
In a request dated 4 September 2024, the applicant sought access to records comprising (i) a contract signed between the Council and a named private company (“the company”), (ii) correspondence relating to the Council’s appointment of the company (to provide it with certain services), and (iii) the identity of “the management point of contact” between the Council and the company.
In a decision dated 30 September 2024, the Council part-granted the applicant’s request. It released the material sought at part (ii) of the request with certain material redacted pursuant to section 36(1) of the FOI Act (relating to commercially sensitive information), and the information sought at part (iii) of the request in full. In relation to part (i), the Council cited section 15(1)(a) of the FOI Act (relating to the administrative refusal of an FOI request where the records sought do not exist or cannot be located after all reasonable steps to find them have been taken) to refuse the request.
On 19 October 2024, the applicant sought an internal review of the Council’s decision. In its internal review decision dated 14 November 2024, the Council affirmed its original decision. On 15 November 2024, the applicant applied to this Office for a review of the Council’s decision on his request.
In the course of this review, the Council indicated that it no longer regarded the record relevant to part (ii) of the FOI request, which it had initially withheld under section 36(1) of the FOI Act, as commercially sensitive, and released a copy of this record in full to the applicant.
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 submissions made by the Council, as well as to the applicant’s comments in the course of his correspondence with both the Council and this Office. I have also examined the records that the Council identified as relevant to the request. I have decided to conclude this review by way of a formal, binding decision.
As noted above, the Council has released in full the information sought at parts (ii) and (iii) of the applicant’s FOI request. Accordingly, this review will focus solely on whether the Council was justified in relying on section 15(1)(a) of the FOI Act to refuse part (i) of the applicant’s request.
In advance of the substantive analysis of this case, there are a number of preliminary points that I wish to make. Firstly, it is important 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.
Furthermore, 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. This is relevant to the case at hand in circumstances where, in supplemental submissions received from the applicant in the course of this review, he took issue with the initial decision of the Council to withhold the records sought at part (ii) of his FOI request under section 36(1), notwithstanding the fact that, at the time he made these submissions, the Council had since fully released this material. The applicant argued that the Council’s original decision to withhold material under section 36(1) was ultra vires and the relevant information should never have been withheld in the first place. However, in circumstances where this review is “de novo”, and the material that the Council initially withheld under section 36(1) has now been released to the applicant in full, I do not consider that I have any basis (and nor do I consider it necessary) to further examine this issue. I would note that, as a general proposition, I do not accept that it is ultra vires for an FOI body to seek to rely on a valid exemption to the obligation to release records, as provided for by the FOI Act, notwithstanding the fact that an applicant might argue (or, indeed, that this Office might ultimately find) that the body’s reliance on any such exemption was not justified.
Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after having taken all reasonable steps to establish their location. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
By way of background, the Council advised that its engagement with the company in this case was in the context of surveying services (sometimes called site inspections) for the purposes of applications it had received for the Vacant Property Refurbishment Grant (“the Grant”). This is a funding scheme whereby up to €50,000 of funding can be awarded to applicants by way of assistance to renovate derelict properties, with a view to turning them into family homes or rental properties. The Council advised that, for the purposes of carrying out surveys in the context of applications for the Grant, it had taken the decision to utilise the services of the Building Surveyors Framework (“the Framework”). This is a scheme established by the Housing Agency to provide a panel of suitably qualified persons who can carry out surveying work for local authorities.
The Council further advised that, in order to become a supplier on the Framework, contractors are first required to submit a tender to the Housing Agency. If a contractor is then awarded a contract, they are placed on the Framework panel, and a contract is signed between the contractor and the Housing Agency regarding terms and conditions. The Council advised that this was the case with the company in this instance. The Council stated that, after this contract was signed, the company’s services were available to local authorities as part of the panel of suitably qualified persons, and that it had availed of the Company’s services in this manner.
The Council stated that the Housing Agency has multiple contracts with various suppliers who carry out services for local authorities, and that the company was one such contractor. The Council stated that the procedure for engaging the services of a contractor through the Framework was that, firstly, the local authority that required a site inspection would contact the Housing Agency advising that it wished to avail of the services of a supplier from the Framework panel, and providing details of the property to be inspected. The Housing Agency would then contact a supplier from the Framework panel, as well as the property owner, and arrange for this site inspection to be carried out. The supplier would then carry out the site inspection and send the report directly to the local authority. This report would feed into the local authority’s decision on the Grant application.
The Council further advised that, when the Framework service was first established, the Housing Agency had contacted all local authorities to notify them of the availability of the service and to outline the process for availing of same. The Council stated that, at the time that the Framework service was first made available, it was already apparent to it that staffing resources were stretched and not sufficient to conduct site inspections of properties for the purposes of applications for the Grant. Accordingly, a decision was made to avail of the Framework service.
In relation to section 15(1)(a), the Council outlined its position that, given the above procedure for availing of contactor services via the Framework, the contract sought at part (i) of the applicant’s FOI request does not exist. In other words, the Council’s position is that, given the manner in which the Framework scheme operates, no contract was in fact ever signed between it and the company. The Council’s position is that any contract that exists would have been agreed between the company and the Housing Agency, and that the Council itself does not hold, and nor has it ever held, a copy of any such contract.
Notwithstanding this position, the Council nonetheless stated that it had carried out a thorough search for either a hard or soft copy of the contract agreed between the Housing Agency and the company, and advised that no copy could be found. It stated that, in particular, searches had been carried out of its shared Housing Drive, which stores all information in relation to applications for the Grant, along with searches of the computers of staff members who had worked, or who currently work, on processing applications for the Grant. The Council stated that these searches had turned up no copy of the contract.
In his application to this Office for a review of the Council’s decision, the applicant stated that on 10 March 2023, a named Council representative had sanctioned the procurement of the company’s services from the Housing Agency, for the Council’s use. He stated that this was a commercial arrangement and matter of record. The applicant stated that the internal memo approving the procurement of the company’s services was entirely between three Council representatives who proposed the arrangement and approved the fee, and that a representative of the Housing Agency was not consulted in relation to, or copied with, the correspondence. He stated that the sums being paid by the Council to the company should be a matter of public record, and the commercial arrangement was solely between the Council and the company.
I put the above arguments of the applicant to the Council and requested that it address same. In response, the Council argued that the intention of the internal memo dated 10 March 2023 was to make official the decision of the Council to use the services of the company, via the Framework service, for site inspections in the context of applications for the Grant. The Council stated that, as this would create an additional cost to the Council, and would have an impact on staffing, the memo of 10 March 2023 was created to confirm the decision to use the services of the company. It stated that this memo was signed soon after the Housing Agency had communicated with all local authorities to advise them of the availability of the Framework service. The Council further advised that the reference to procurement in the memo of 10 March 2023 related to the fact that the Council would be utilising the service and that it would be required to pay for same. Up to this point, the Council stated that it had not been paying for this service as Council staff had been carrying out the relevant site inspections.
I put the above arguments of the Council to the applicant for his consideration. In response, although the applicant did make further submissions, these did not address section 15(1)(a) or the Council’s arguments, but rather focussed on the Council’s reliance on section 36(1) of the FOI Act in its original decision (a point which I have addressed above).
I find as follows in relation to section 15(1)(a) of the FOI Act. First of all, I would note that, for the purposes of section 15(1)(a), the test is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or existence of records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found.
In this case, the Council has argued that the record as sought by the applicant – in other words, a copy of a contract agreed between the Council and the company – does not exist, for the reasons outlined above, and furthermore that any contract that does exist would have been agreed, not between the company and the Council, but rather between the company and the Housing Agency, and would be held by the latter body. I note that, in its decision on the applicant’s FOI request, the Council advised him of its position in this regard, and provided the applicant with contact details for the Housing Agency. It is not clear to me whether the applicant has followed up with the Housing Agency in this regard. In any case, for the avoidance of any doubt, and particularly in circumstances where the applicant argues that details of the sums paid to the company should be made publicly available, I would note that it is open to him to request the record at issue directly from the Housing Agency, which is itself an FOI body.
On the basis of the information provided by the Council, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the record sought. My view is that the account from the Council as outlined above constitutes a clear and sufficiently detailed explanation of the systems and processes that account for the non-existence of the record. In addition – notwithstanding its position that the record sought does not exist – I am satisfied that all reasonable steps appear to have been taken by Council in attempting to establish if it did hold a copy of a contract that it states would have been agreed between the company and the Housing Agency. There is no information or evidence available to me that would suggest that the contract sought by the applicant is held by the Council, or that the searches carried out by the Council for a contract as agreed between the company and the Housing Agency were in any way deficient. In the absence of any such information, I find that the Council was entitled to refuse this aspect of the applicant’s request under section 15(1)(a) of the FOI Act, on the basis that the relevant record does not exist, after all reasonable steps were taken to locate it.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to the record sought at part (i) of the applicant’s FOI request.
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.
Neill Dougan
Investigator