Whether the Council was justified in refusing to grant access to various records concerning the Loughrea Municipal District - Non National Pavement Overlays Contract 2015- Contract No 1 (the contract) on the basis of sections 31(1)(a) and 36 of the FOI Act, and in refusing to grant access to further records on the basis that no additional records existed or could be located once all reasonable steps had been taken to ascertain their whereabouts

30 May 2018 

Background

I should state at the outset that the manner in which the Council has dealt with the applicant's request was most unsatisfactory. Essentially, the applicant has twice had to apply to this Office for a review in order to get a decision on all aspects of his request and the matter is still not settled. 

The applicant originally made an FOI request on 16 September 2015, seeking access to various records concerning the contract. The Council's decision on this request was the subject of a review by the Commissioner in Case No.160340, which is available on our websitewww.oic.ie. The decision in that case issued on 15 March 2017, directing the Council to (a) release various records and (b) carry out a fresh decision-making process in relation to other categories of records relating to the contract, as the Council had not demonstrated that it had undertaken reasonable searches for relevant records. In fact, the Council had not made any submission to this Office in relation to that case or provided any information to support its decision.

Following this Office's decision in that case, the Commissioner asked me to write to the Council outlining his concern at the Council's poor handling of the matter. The Interim Chief Executive Officer of the Council replied on 25 May 2017, wherein he stated that he regretted that the Council's handling of the case fell short of the required standard. He also stated that he had asked all relevant staff to review their handling of FOI requests to ensure that issues raised were fully addressed. 

By my reckoning, the Council should have begun its fresh decision-making process on the applicant's request by 25 April 2017. However, while the Council released additional records in April 2017, as required by my decision, it did not carry out a fresh decision-making process on the additional categories of records. This was despite internal Council correspondence, which has been copied to this Office, dated 4 May 2017, which clearly set out the Council's understanding of this Office's decision and my direction to the Council to make a new decision in relation to the relevant categories of records listed. There is nothing before me to suggest that this was done.

In any event, on 28 June 2017, the applicant requested an internal review on the basis of a deemed refusal, as he had not received a new, first instance decision in relation to the records at issue. On 18 September 2017 (almost 11 weeks after his internal review request) a letter issued from the Council stating that "the records were reviewed in relation to this case" and that there was "no further documentation in existence in relation to the matter". However, it did not refer to any provisions of the FOI Act in reference to the apparent refusal of the applicant's request. Neither did it explain the Council's decision, nor refer to the applicant's right of appeal to this Office. I should state at this point that this was particularly disappointing in view of my earlier letter to the Interim Chief Executive Officer which reminded him of the Council's obligations under sections 13(2)(d) and 21(5)(c) of the FOI Act, which set out what must be specified in a notification of a decision to refuse a request. 

Essentially, despite this Office's earlier decision and my letter to the Interim CEO, the Council has not complied with the requirements of the FOI Act, including the timelines set out in the FOI Act, in its handling of the case since it was remitted. This is very disappointing and, I have to say, unusual in that the majority of public bodies, including local authorities, comply with the Act. In particular, my experience is that very few public bodies fail to act when directed to do so by the Commissioner. Although individual staff members of the Council have been helpful, it is clear that the Council as a whole does not take its FOI obligations seriously. I have brought this to the Commissioner's attention and he will consider using his enforcement powers under section 45(8) of the Act if the Council fails to comply with the directions in this decision.

On 19 December 2017, the applicant applied to this Office for a review of the Council's response to his internal review request. Due to the inadequacy of the Council's handling of the remitted aspect of his request, and its lack of compliance with the provisions of the FOI Act, I decided to issue a notice under section 45 of the FOI Act, requiring the Council to provide this Office with the relevant information required to progress the appeal. 

During the course of this review, the Council has located additional records relating to the applicant's request, most of which it has provided to this Office and released to the applicant. It has also located other records which have not yet been collated or considered for release, although it indicated that it considered section 36 (commercially sensitive information) to apply. 

This Office's Investigator contacted the applicant and provided him with details of the additional searches undertaken by the Council and outlined her view that the Council had justified the majority of its effective decision to refuse access to additional records. She invited him to make a submission in this regard, but to date, no reply has been received by this Office.

Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse to grant access to additional records in relation to the contract on the basis of sections 15(1)(a) and 36 of the FOI Act.

Preliminary Matters

It is important to note that 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 head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

I note that in its submission to this Office in this case, the Council stated that it had interpreted the applicant's original request as relating to the procurement process only. While this may have been the case, this Office made it very clear to the Council in Case No. 160340 that it considered the applicant's request to be much broader than that. In fact, in my previous decision, I had indicated to the Council that it should have at the very least engaged with the applicant in an effort to clarify the scope of his request and I listed various categories of records which did not appear to have been considered. It is important to note in this regard that section 15(4) of the FOI Act provides that an FOI body cannot refuse to grant a request on the basis that it does not contain sufficient particulars to identify the record by the taking of reasonable steps (section 12(1)(b) refers) or on the basis that it is a voluminous request (section 15(1)(c) refers), without first assisting or offering to assist the requester so as to amend the request for re-submission.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. By saying in its letter of 187 September 2017 that there was "no further documentation in existence in relation to the matter", the Council effectively refused access to further records under section 15(1)(a) of the FOI Act.

A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken reasonable steps to locate all records of relevance to a request, or that such records do not exist. These are generally referred to as "search cases". It is not normally this Office's function to search for records. The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In the previous case, the Council did not respond to a request for information in relation to the searches it had undertaken to locate relevant records. Following the letter to its CEO in this case, it provided the information below.

Searches

The Council provided details of the typical records which would exist or be created in relation to projects such as the contract concerned. The Investigator has provided these to the applicant, so I will not repeat them here in detail. In summary, it stated that it would typically expect records to exist in relation to the Roads Programme as well as tender documents, submissions and award documents. I note that a number of records falling under these descriptions were located and considered for release in the previous case. 

This Office asked the Council to conduct further searches for relevant records in this case, in relation to the specific categories of records set out below:

1. Planning Records: The Council stated that the construction of new roads would generate planning records as it would be required to give public notice of proposals and to consider observations and submissions before making a decision to proceed. It said that as the contract at issue was for the reconstruction of existing roads, no planning approval or consent was required. Its position, therefore, is that no planning records exist relating to the contract.

2. Pre-Procurement Records:The Council identified a number of records under this heading including general records such as correspondence with the Department of Transport, Trade, Tourism and Sport (the Department) relating to grant allocations including roadworks; the Roads Programme 2015 which refers to the funding of restoration of roads in the relevant area; and minutes of a Council meeting adopting the Service Delivery Plan for 2015 (which includes the Roads Programme). The Council has released these records to the applicant during the course of this review, with the exception of one record, record 37a. It has relied on section 31(1)(a) in its decision to refuse access to this record. Its position is that no other records exist or can be located relating to this category.

3. Procurement Records: The applicant was of the view that additional records should exist in relation to this category, and in particular in relation to a revised letter of intent which was sent to his company by the Council during the tender process. The Council stated that no additional records relating to this stage of the process or the revised letter were located, or existed. It also stated that the revised letter of intent "was the same letter issued to subsequent tenderers who were offered the contract". In response to further queries from this Office, the Council stated that once contract tenders were received and assessed, it complied a list of tenderers in priority order in line with the published award criteria. It said that the relevant works had to be completed within a particular timeline, and that the Senior Executive Engineer formed the view that further information was required to demonstrate the capacity of tenderers to deliver the contract as specified. It said that the Engineer discussed this with his supervisor and they agreed that further information was required. The Council said that the Engineer then amended the original letter on foot of that discussion and this was issued to three potentially successful tenderers before the contract was ultimately awarded. In essence, the Council's position is that no records were created in relation to the amendment of the letter of intent.

4. Internal Reporting:The Council stated that such projects are managed at a local level by "visual inspection and financial control." It stated that invoices were checked and certified for payment when submitted. It stated that these records are held manually and electronically and that further time would be required to collate them. It further stated that it considered invoices submitted by the successful contractor to be commercially sensitive. 

5. External Reporting:The Council stated that it submitted monthly claims to the Department in relation to expenditure on various items including the contract concerned. It also said that it collated reports to accompany these claims by extracting information from its financial systems which was amended to include only relevant line items. It stated that it considered details included in these claims to be commercially sensitive as they included total payments made to contractors/suppliers.

6. Council Business:The Council stated that records in relation to Council business mostly fell under pre-procurement records above, as well as records identified in relation to the previous case. It stated that it had located a number of additional records (mainly emails) which it has since released to the applicant. 

The Council provided a copy of its Record Management policy and retention policy which confirmed that records relating to the particular contract were not scheduled for disposal and it stated that no records relating to the project had been destroyed. It also stated that it had conducted searches in the local Municipal District Area Office, the Roads and Transportation Unit and Law Agent's Office. It said that the entire project was initiated, progressed and managed directly by the Municipal Office. It also said that all of the records relating to the project were retained in soft copy format in one location (presumably an electronic folder or similar) and that the hard copy records are held in the Municipal District office. It said that it had conducted manual and electronic searches for relevant records in both locations, and that there was nowhere else within the Council were such records were likely to be held. Essentially, its position was that other than the records identified above and in the previous case, no other relevant records existed or could be found.

Categories 1-3 and 6

It seems to me that the Council has adequately explained why no records exist relating to category 1 above. I also note that the Council has released the additional records located in terms of categories 2 and 6 to the applicant, apart from one record, which was withheld on the basis of section 31(1)(a). I shall consider this separately below. In relation to category 3, the revised letter of intent, the Council has explained the background to the amendments made and the various steps involved. 

Taking the above into account, I am satisfied that the Council has taken reasonable steps to locate relevant records. However I must state that it is regrettable that more than two and a half years have passed since the applicant made his original request and it has taken this long for the Council to provide the details set out above. In any event, I find that the Council was justified in refusing to grant access to any further additional records in relation to Categories 1 and 3. I also find that the Council's amended decision to release additional records in relation to Categories 2 and 6 is justified. I will consider the Council's refusal to grant access to record 37a under section 31(1)(a) below.

Categories 4 and 5

While it appears that the Council has finally taken steps to locate additional relevant records in this case, it has not yet fully collated and examined all of the records it has identified as relating to categories 4 and 5 above. The Council has indicted that it is of the view that much of the information in these records is commercially sensitive. It also appears that these records do not solely relate to the successful tenderer, and that other third parties are involved. In the circumstances of the case, subject to the applicant's confirmation to the Council that he wishes it to do so, I direct it to make a fresh decision on these parts of the request. Any decision by the Council to rely on section 36, or any other FOI Act provision, is subject to the usual statutory rights of internal and external review. 

I must say here that I am reluctant to remit this part of the application for fresh consideration. However, it would not be appropriate for this Office to make a first instance decision on records that have not been fully collated or properly considered under the Act by the Council, especially when third parties are potentially affected.

Section 31(1)(a)

The Council has refused to grant access to Record 37(a) on the basis of section 31(1)(a) of the FOI Act. Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. 

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and 
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Record 37a comprises two emails between the Senior Executive Engineer and an internal Council Law Agent seeking advice on a matter relating to the contract. I am satisfied that this falls within the exemption for legal professional advice, and that the Council was justified in refusing to grant access to this record on that basis.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council. I affirm its decision to refuse to release additional records in relation to categories 1-3 and 6 on the basis that no additional records exist or can be located once all reasonable steps have been taken to ascertain their whereabouts. I also affirm its decision to refuse to grant access to Record 37a on the basis of section 31(1)(a) of the Act. 

I annul the Council's effective refusal to grant access to records relating to categories 4 and 5 and direct it to fully identify, collate and schedule the records concerned and to undertake the proper statutory decision making process on these records, subject to the applicant confirming to the Council that he wishes it to do so, and to inform the applicant of the outcome in accordance with section 13 of the FOI Act. 

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator