Cinneadh
Mr. X & Donegal County Council (the Council)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-161160-W5T7D7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-161160-W5T7D7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to further records relating to a list of MC’s and speakers, and the fees and expenses paid to said MC’s and speakers, at a specified event, under section 15(1)(a) of the Act, on the basis that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts and in refusing access the records identified on the basis of section 37(1) relating to personal information
30 July 2026
On 14 June 2025, the applicant submitted the following FOI request to Donegal County Council (the Council):
“Under the FOI Act, I am seeking the following :
For the 2014 Donegal Local Enterprise Business Week Event:
- List of all MC's and speakers
- All fees & expenses paid to said MC's and speakers.”
On 9 July 2025, the Council issued its original decision, in which it part granted the applicant’s request. Further to part 1 of the applicant’s request, the Council released a list of MC’s and speakers names from the 2014 Donegal Local Enterprise Business Week event. The Council stated it was refusing part 2 of the applicant’s request under section 37 of the Act, on the basis that the records contained personal information. It said it did not have the consent of the third parties involved to release their personal information, and it did not consider it appropriate to seek their consent. During the course of the review the Council clarified to this Office that, at the time of its original decision, it had not located any records which fell within part 2 of the applicant’s request, and instead its reliance on section 37 had been pre-emptive, which I will address in further detail below.
On 18 July 2025, the applicant applied for an internal review of the Council’s decision. On 23 July 2025 the Council issued its internal review decision, in which it affirmed its original decision.
On 4 August 2025, the applicant applied to this Office for a review of the Council’s decision. In his application he argued that the Council had not appropriately considered the requirements of section 37(5)(a) as he considered that the information at issue should be released in the public interest.
In the course of the review by this Office, the Council informed the Investigating Officer that it was now seeking to rely on section 15(1)(a) with respect to part 2 of the applicant’s request. It said that having conducted searches in its Offices, its position was that it did not hold any records relating to the fees and expenses paid to MC’s and speakers at the specified event. In support of this position, the Council stated that it had conducted searches of its financial system, called AGRESSO, to ascertain whether it held any records falling within the scope of part 2 of the applicant’s request. It stated that it conducted a search for records falling within the scope of the request on this system, and it was discovered that the Council did not hold these records. It further said that it believed that the reason for this was that the current Local Enterprise Office was set up in 2014, after the specified event referred to by the applicant in his request. It further said that records relevant to the applicant’s request would belong to the Enterprise Board which was disbanded in 2014 and the Council would have no access to these. It therefore said that it was no longer seeking to rely on section 37(1) in this matter and was instead seeking to rely on section 15(1)(a) to refuse access to records falling with the scope of part 2 of the applicant’s request.
However, as this review progressed, the Council then informed this Office that it had in fact now located three records which it deemed as falling within part 2 of the applicant’s request, which it has sought to refuse under section 37 of the Act.
During the course of this review, the Investigating Officer twice provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that the records sought do not exist or cannot be found. The Investigating Officer also informed the applicant that the Council had now located records falling within part 2 of his request, and that it sought to refuse access to these records under section 37 of the Act. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 by both the Council and the applicant during the course of the review. While I do not intend to repeat in full either the Council’s submissions or those made by the applicant, I can confirm that I have had regard to both for the purposes of this decision. I have decided to conclude this review by way of a formal, binding decision.
As set out above, in the initial stages of the review by this Office, the Council indicated that it was seeking to rely on section 15(1)(a) to refuse access to any further records falling within the scope of the applicant’s request. It provided submissions to this Office outlining the searches it had undertaken with respect to the applicant’s request and, in line with our normal procedures, details of these searches were shared with the applicant. The applicant was invited to make submissions in response, which he duly did.
However, as set out above, in the course of the review by this Office, the Council have now identified three records falling with the scope of the second part of the applicant’s request for which it is now seeking to rely on section 37.
It is important to note that a review by this Office is considered to be ‘de novo’, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As will be set out in further detail below, the applicant’s submissions to this Office call into question the overall adequacy of the searches conducted by the Council. Bearing in mind the de novo aspect of our reviews, and in the absence of any clear indication from the Council that it was no longer seeking to rely on section 15(1)(a) to refuse access to any further records falling within the scope of the applicant’s request, beyond the three records it identified in the course of this review, I am satisfied that it is appropriate that I consider the applicability of section 15(1)(a) to any further records falling within the scope of the applicant’s request.
This review is therefore concerned solely with whether the Council was justified in refusing access, under section 37 of the Act to the three records it located during the course of this review relating to part 2 of the applicant’s request, and whether it was justified in refusing access to any further records falling within the applicant’s request under section 15(1)(a) of the Act, on the basis that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments.
First, it should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Second, section 25(3) of the Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Accordingly, I am limited in the extent to which I can describe the content of the refused records concerned.
Finally, I also wish to comment on the Council’s initial reliance on section 37. As set out above, it would appear that the Council had initially relied on section 37 of the Act to refuse part 2 of the applicant’s request on the basis that, if it held the information requested, which it initially stated it did not, that this information- or part of this information- would have fallen to be refused on the basis that it constituted personal information of third parties.
This is an incorrect application of an exemption provision. It is important to note that an exemption provision such as section 37 can only be applied in circumstances where a record has been located. It is not a provision which provides for a refusal based on pre-emptive reasoning, such as if the record did exist, it would be refused. Section 37 can only be applied in circumstances where there is a record at issue, and this record has been examined and found to be exempt based on the content of the record. While I accept that the change in the Council’s position before this Office to rely instead on section 15(1)(a) is a tacit acceptable that it should not have applied an exemption provision to information that it did at that point hold in its possession, I nonetheless hope that the Council will bear the above in mind when processing future requests under the FOI Act.
I propose to structure my review as follows. First, I will address the section 15(1)(a) element of the review, conducting an analysis of the submissions provided by both parties on this matter. I will address the Council’s submissions in respect of section 37 of the Act to refuse access to records 1, 2, and 3 which were identified in the course of the review by this Office which it has deemed as falling within the scope of the applicant’s request.
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. My 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 their 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.
As noted above, the applicant’s FOI request is as follows:
“Under the FOI Act, I am seeking the following :
For the 2014 Donegal Local Enterprise Business Week Event:
- List of all MC's and speakers
- All fees & expenses paid to said MC's and speakers.”
In respect of part 1 of the applicant’s request for a list of all MC’s and speakers, the Council’s position is that this part of the applicant’s request has been released in full, and that no further records exist or can be found. In respect of part 2 of the applicant’s request for all fees and expenses paid to said MC’s and speakers, the Council’s position is that no further records, beyond the three records it located during the course of this review, exist or can be found in relation to part 2 after all reasonable steps to ascertain their whereabouts have been taken. As such, the Council is seeking to refuse parts 1 and 2 of the applicant’s request under section 15(1)(a) of the Act, on the basis that no further records exist or can be found which fall under the scope of the request.
In relation to part 1 of the request, the Council stated in its submissions to this Office that it had released to the applicant a list of all MC’s and speakers for the 2014 Donegal Local Enterprise Business Week Event. The Council stated that it located this information in an old brochure that was found when conducting searches for records falling within the scope of the applicant’s request. It stated that, having released this information, it was satisfied that it had released all information falling within the scope of part 1 of the applicant’s request. Based on the submissions before me, it does not appear that the applicant disputes that the list of speakers has been released to him.
In its submissions to this Office, the Council originally stated that its position was that no records existed in relation to part 2 of the applicant’s request, which sought access to the fees and expenses paid to the MC’s and speakers at the 2014 Donegal Local Enterprise Business Week event. The Council initially stated to this Office that, having conducted searches in its Offices and having liaised with relevant staff members, its position was that it did not hold any records relating to the fees and expenses paid to MC’s and speakers at the specified event. In support of this position, the Council stated that it had conducted detailed searches of its financial systems to ascertain whether it held any records falling within the scope of part 2 of the applicant’s request. The Council stated that it operates a financial system called AGRESSO, which it said is where all financial transactions for the Council are recorded. It stated that it conducted a search for records falling within the scope of the request on this system, and it was discovered that the Council did not hold these records. The Council stated that there are varying levels of access to the AGRESSO system, and as such it stated that when conducting searches it began by consulting officers in the LEO Office, who conducted searches for expenditure on MC’s and speakers in 2014, for which it said no records were located. The Council stated that upon these searches returning nil results, the Council reached out to its Finance Section in Headquarters and consulted with a senior officer who has a high level of access to the AGRESSO system. The Council stated that this senior officer conducted a number of key word searches using the parameters set out in the applicant’s request, and again no records were located on the system relating to the fees and expenses paid to MC’s and speakers during the 2014 Donegal Local Enterprise Business Week Event. The Council also stated that searches were conducted on-site in the LEO Office, and that no records were located relating to the applicant’s request there either.
In explanation of why no records were held relating to the fees and expenses paid to the MC’s and speakers of the specified event, the Council stated that the current Local Enterprise Office was created after the 2014 Donegal Local Enterprise Business Week event, and as such, it stated that it believed the records sought by the applicant relating to the enterprise week would have been held by the previous Donegal Enterprise Board, which it stated was disbanded in 2014. The Council stated that all chargeability codes were closed upon the Board’s disbandment, and as such the Council does not have access to them. When asked if the Council could provide more detail on what occurred to the records which were held by the Enterprise Board when it was disbanded in 2014 i.e. whether those records were deleted, transferred, archived etc. In response, the Council stated that it had liaised with staff in its LEO Office to try and ascertain whether anyone was aware of what occurred to the records held by the Enterprise Board upon its disbandment, and that having conducted these enquiries it was unable to ascertain what had occurred to the records. The Council stated that, to its knowledge, the current LEO Office staff were not employed in 2014, and as such did not recall the existence of the Enterprise Board, nor what had occurred to the records held by the Enterprise Board upon its disbandment in 2014. The Council stated that it believed the Enterprise Board, as the relevant authority at the time of the 2014 Donegal Local Enterprise Business Week Event, would likely have held records relating to the expenses and fees paid to MC’s and speakers at the event. However, the Council stated that as the Enterprise Board was disbanded in 2014, it had no way of knowing what happened to said records, if they did exist.
At this point in the review, the applicant was provided with a summary of the Council’s submissions to date, and invited to make submissions in response, which he duly did. While I do not propose to repeat the submissions provided by the applicant in full here, I can confirm I have had regard to them in their entirety for the purpose of this review.
In his submissions to this Office, the applicant raised particular issue with the Council’s assertion that it did not know what occurred to the records previously held by the County Enterprise Board when it was dissolved in 2014. The applicant stated that he believed section 11(9) of the FOI Act was central to this case. He pointed out that the County and City Enterprise Boards were dissolved in 2014 by statutory instrument i.e. the County Enterprise Boards (Dissolution) Act 2014 and argued that this statutory instrument must have allowed for the County Enterprise Board’s functions, assets and records to be transferred to designated successor bodies, primarily Enterprise Ireland and the newly established Local Enterprise Offices. The applicant stated that he believed under section 11(9) of the Act, the successor body was deemed to hold the predecessor’s records for FOI purposes. In other words, the records of the former Donegal County Enterprise Board did not fall outside the FOI regime on dissolution, but instead they continued to be held, in law, by the successor organization i.e. the Local Enterprise Office and/or Enterprise Ireland.
In light of this, the applicant stated he believed a reasonable search would have required the Council to identify the relevant dissolution instrument, determine the designated successor for the former Donegal County Enterprise Board’s records, and make appropriate inquiries of that successor body to ascertain what occurred to its records. He argued that without establishing who inherited the records, it was not possible to conclude that all reasonable steps have been taken.
Finally, the applicant stated that whilst he appreciated that some current LEO staff were not employed in 2014, he believed that a lack of institutional memory did not displace the obligation to conduct a structured inquiry into the fate of predecessor records.
Having reviewed the applicant’s submissions, and the casefile in its entirety, this Office believed that further information was required from the Council, particularly in relation to what occurred to the records held by the former Enterprise Board. As such, the Investigating Officer reached out to the Council with further queries, with a particular focus on what steps were taken by the Council to try to ascertain what occurred to the records held by the Enterprise Board upon its dissolution.
In response, the Council clarified to this Office that had incorrectly stated that it had no knowledge of what occurred to the Enterprise Board’s records upon its dissolution in 2014. Instead, the Council stated that it holds all records previously held by the Donegal Enterprise Board. The Council stated that, having established it does hold the records previously held by the Enterprise Board, it conducted the searches for records falling within the scope of the applicant’s request. The Council stated that paper records from the previous County Enterprise Board were held in storage on site at the Local Enterprise Office. It stated that all 2014 records (previously held by the Enterprise Board) were searched, and that both electronic and physical searches were carried out. The Council then provided an overview of the searches carried out for records falling within the scope of the applicant’s request. It began by stating that paper files relating to 2014 were stored in an attic on site in the Local Enterprise Office. In relation to the physical searches carried out, the Council stated that all paper files were stored in file boxes, dated by year and filed by activity. It stated that the relevant paper files were manually searched for ‘2014’ and for ‘Local Enterprise Week’. The Council stated that the only record found in relation to the fees and expenses paid to MC’s and speakers of the 2014 Donegal Local Enterprise Business Week was the 2014 brochure in hard copy. It stated that no other records for 2014 were available to search. The Council stated that no personnel who were employed in March 2014 are currently employed with the Council, and as such there was no known individuals to contact in relation to the records which were searched. The Council stated that its position is that no further hard copy records relating to the fees and expenses paid to the speakers of the 2014 Donegal Local Enterprise Business Week event exist. It stated that its position is that any additional records which may have existed in the past were deleted in line with ‘National Retention Policy for Local Authority Records 2021- Enterprise & Economic Development- approved by LGMA for use by LGMA on 17 November 2021’.
In relation to its searches for electronic records, the Council stated that searches were carried out on its financial computer system (AGRESSO). It stated that this system was searched for any 2014 record under Local Enterprise Week and it stated one record was located, referred to as Record 1 above. The Council went on to state that, in order to respond to this Office’s request for further search details, the Council had carried out a further search of its computer systems using the word ‘archive’, and it stated two additional records were discovered in relation to “speakers fees” that it deemed as relevant to the applicant’s request. The Council stated that it believed these records (Records 1, 2, and 3) fall to be refused under section 37(1) of the Act, as the release of the records would involve the disclosure of personal information. As such, it stated it was refusing access to the three records in their entirety under section 37(1) of the Act.
In light of the additional information received, the applicant was provided with a second update letter, informing of the new material issues raised by the Council. The applicant was invited to make submissions on the matter, which he duly did. In response, the applicant initially noted the Council’s uncertainty with respect to the existence or location of the records at issue, in particular its changing position regarding whether it held the records previously held by the disbanded Donegal Enterprise Board.
In addition, the applicant also raised concern regarding the adequacy of the searches which were carried out by the Council. He noted that, in his opinion, it was unclear why the Council had not conducted keyword searches of its financial system using the names of the identified speakers or payees i.e. the 26 names which were listed in the decision letter provided to him, given that, in his opinion, such keyword searches would reasonably be expected to identify relevant payment records. Furthermore, the applicant stated that the event was referred to as “Donegal Enterprise Week” in the media at the time, and as such he believed the Council’s use of “Local Enterprise Week” as a keyword search was unlikely to return any or all relevant records he had requested.
The applicant also raised issue with the Council’s suggestion that records may have been deleted in accordance with a 2021 retention policy, given the fact that his request is concerned with financial records from 2014 which might reasonably have been expected to be retained. Finally, in relation to the Council’s assertion that no personnel involved in the 2014 Enterprise Board remain employed by the Council at present, the applicant stated that this assertion alone does not necessarily address the question of whether all reasonable steps have been taken to locate relevant records. He stated that, in his opinion, the absence of specific personnel does not negate the obligation on the Council to conduct thorough and systematic searches of its records, including searches of archived material and financial systems. The applicant suggested that in the interest of full transparency the Council should be required to provide a list of the searches and keywords it used.
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 are known to have existed cannot be found. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
However, this Office does require an FOI body to provide sufficient details to demonstrate that it has conducted all reasonable steps to ascertain the whereabouts of records falling within the scope of an applicant’s request. In this case, I do not believe the Council has met this threshold. I will outline my reasoning for reaching this conclusion below.
First, in its submissions to this Office the Council has failed to provide adequate detail regarding the searches it carried out, in particular in respect of electronic searches carried out. Initially, the Council stated that key word searches using the parameters of the applicant’s request were carried out, and later in the review it stated that it had carried out searches of its financial computer system for “any 2014 record under Local Enterprise Week”, and also a search of the “computer system was conducted using the word ‘archive’.” Whilst I acknowledge the Council made an effort during the course of the review to provide additional details regarding the searches it conducted, the information provided to date, in my opinion, falls short of the reasonable steps threshold required under section 15(1)(a) of the Act. Furthermore, as noted by the applicant, the Council do not appear to have conducted any key word searches using the names of the speakers and MC’s for the relevant event, and I agree that such searches would be considered relevant and necessary. Similarly, as the applicant stated, the Council has indicated to this Office that it conducted electronic searches using the key words ‘Local Enterprise Week’, notwithstanding that, according to the applicant, the event was referred to as ‘Donegal Enterprise Week’ by media at the time. As such, this again raises queries regarding the adequacy of the searches conducted by the Council as, if the event was referred to by multiple titles, this could mean that records would exist under multiple key words in its electronic systems, and without conducting searches using all variations of the events title, it appears reasonable to suggest that some records may be missed.
In addition to the points above, it is also worth noting that the Council have asserted on several occasions during the course of the review that no further records exist, and on several occasions after such an assertion further records have been located. In particular, I note that additional records have been located on the Council’s financial computer system on two occasions during the course of this review, which inherently calls into question the adequacy of the searches which have been carried out on this system to date.
Having considered the factors outlined above, it is not possible for this Office at present to find that the Council were justified in refusing access to further records relating to the applicant’s request under section 15(1)(a) of the Act. Section 15(1)(a) requires an FOI Body to demonstrate it has conducted all reasonable searches for records falling within the scope of an applicant’s request, and as noted above, the Council at present have not provided this Office with sufficient information regarding the searches carried out.
As such, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of the Council to refuse access to further relevant records relating to the applicant’s request under section 15(1)(a) of the Act. The effect of this 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 he is not satisfied with the Council’s decision.
As noted above, the Council has sought to refuse access to three records ,which it located during the course of this review, under section 37 of the Act, on the basis that, if found at the time of the applicant’s request, the records would have been withheld as they involve disclosure of personal information. This Office put a number of questions to the Council regarding its reliance on section 37 of the Act, however, the Council stated it had no further submissions to make beyond stating that the records fell to be refused under section 37 of the Act.
Mindful of the provisions of section 25(3) of the Act, the records at issue can be categorised as follows:
(1) Record 1 is a transaction document totalling 3 pages.
(2) Record 2 is an interoffice memorandum, totalling 1 page.
(3) Record 3 is a contract for services document, totalling 2 pages.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines personal information 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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
As noted above, the Council did not provide this Office with any specific submissions regarding its reliance on section 37(1) of the Act, beyond simply stating the following: “The Council wishes to refuse the record under section 37 (1) of the Freedom of Information (FOI) Act”, and “If found at the time of [applicant’s name] request, the records would have been withheld under Section 37 (1) of the FOI Acts, as they involve the disclosure of personal information.”
In his submissions to this Office, the applicant noted that it was difficult for him to provide specific submissions in response to the Council’s reliance on section 37 of the Act in circumstances where he has not had sight of the records at issue. However, based on the update letter provided, the applicant did provide submissions in respect of section 37 of the Act and his belief that the Council were not justified in refusing access to the three records it had located under section 37(1) of the Act.
In his submissions, the applicant stated that the records he has requested concern payments made by a public body to subjects engaged to provide services at a publicly funded event. He stated that, in such circumstances, he believed these service providers were acting in a professional capacity and were compensated with public funds, post invoicing for their work. The applicant stated that, in his opinion, information of this nature does not attract the same level of protection as information relating to an individual’s private affairs. He stated that it would appear the Council has characterised the information as relating to the ‘financial affairs’ of the individuals concerned, however, in his opinion, such a characterisation, without more detail, is not sufficient to establish that section 37(1) applies. Furthermore, the applicant noted that the Council had provided no explanation as to how it believed the disclosure of the records at issue would involve an unjustified invasion of the personal privacy of those involved. He stated that, for example, he was content to accept that details such as the service provider’s bank details be redacted, acknowledging that the Act requires that access to records be granted to the greatest extent possible.
The applicant also stated that he was aware that the definition of personal information under the Act expressly excludes certain information relating to service providers, including information relating to the service provided and the terms of the contract. He stated that, to his knowledge, in circumstances where the individuals concerned were engaged by a public body to provide services at a publicly funded event, it is not evident that all of the information at issue falls within the scope of "personal information" for the purposes of section 37(1) of the Act. He stated that the Council had not assisted him by not elaborating on the outright refusal and by switching between positions of refusal under section 37(1), then section 15(1)(a), and finally back again to section 37(1).
Finally, in respect of section 37(5)(a), the applicant stated that, in his opinion, the Council had not engaged in any public balancing test for the records at issue. He stated that the Council had not identified any specific harm that might arise from the disclosure of the records at issue, nor had it explained why the public interest in withholding the information outweighs the public interest in release. The applicant also stated that, in his opinion, the Council’s reference to the absence of consent from third parties was flawed, given the fact that, to his knowledge, the Act does not require consent as a precondition for release and the absence of consent does not automatically justify a refusal under section 37 of the Act. He stated that, in his opinion, there is a well-established public interest in ensuring openness and accountability in the expenditure of public funds and the records he has sought relate directly to such expenditure. The applicant stated that, in the absence of any identified harm, he considers that the public interest favours release.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the FOI body satisfies the Commissioner that its decision was justified. While the Council has indicated that it is seeking to rely on section 37(1) to refuse access to the three records identified in the course of this review, despite requests from this Office, it has not provided any information as to why it considers this provision to apply to the specific contents of the records and in particular has provided no information on how it dealt with the public interest balancing test required by section 37(5)(a).
Nevertheless, I do not consider it appropriate to simply direct the release of the records at issue, having regard to their contents. I have considered this matter carefully and had regard to the fact that third party interests may be affected. Moreover, this Office is not a first-instance decision-maker.
Instead, I consider that the most appropriate course of action to take is to annul the Council’s decision and to direct it to make a fresh, first instance decision on these three records. That decision will be subject to the further rights of review as set out in the Act. While it is unfortunate that this course of action will further delay matters for the applicant, I consider it to be the most appropriate course to take in the circumstances. If the applicant feels it necessary to seek a further review of the Council’s fresh decisions on the request, this Office will seek to prioritise any such review.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I annul the Council’s reliance on section 15(1)(a) of the Act to refuse access to any further records relating to the applicant’s request on the basis that no further records exist or can be found, having found that the Council has not conducted all reasonable searches to ascertain the whereabouts of records, and I remit this portion of the request back to the Council to consider afresh. I also annul the Council’s decision to refuse access to three records identified in the course of the review before this Office and I direct the Council to undertake a fresh decision-making process with respect to these records.
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 not later than four weeks after notice of the decision was given to
the person bringing the appeal.
____________________
Mary Connery
Investigator