Whether the Council was justified in its decision to refuse the applicant’s request for access to additional records pertaining to decisions made in relation to parking on a named road  other than those already released to him on the ground that no further relevant records exist or can be found

2 September 2020

Background

On 19 February 2019, the applicant submitted a request to the Council for a statement of reasons for various acts and/or decisions of the Council relating to parking on a named road in Galway on which a business in which the applicant has a stake is situated and relating to fixed penalty notices placed on his car. He identified the acts or decisions as;

1. To cease pay and display parking on the northern side of a named road, including immediately adjacent to his business premises
2. To designate sections of the northern side of the named road an omnibus stopping place/stand
3. To place Fixed Penalty Notices on his car before and after 26 November 2018, being the date on which the City Manager was sent a registered letter.

He also requested all documents held relating to those acts and decisions, to include any Manager’s Orders and resolutions, directions, reports, minutes of any meetings, and the authority and regulations under which the Council asserts that it is entitled to make such decisions.

On 5 March 2019, the Council informed the applicant that under section 12(1)(b) of the Act, he was required to give sufficient particulars to enable the Council to identify the records sought. It said his request did not contain sufficient particulars to enable the records to be identified and may have to be refused. It asked him to provide timelines for the records sought. It said it would issue a decision on the request if it did not hear from the applicant within eight weeks. On 5 April 2019, the Council issued a decision wherein it refused the applicant’s request for records under section 15(1)(b) as it said it had received no response to its letter of 5 March 2019.

On 16 April 2019, the applicant sought an internal review of the Council’s decision, noting that the decision had issued within the eight-week response period provided for in the Council’s letter of 5 March 2019.  In relation to the Council’s request for timelines for the records sought, he noted that a notice relating to the matters identified at parts 1 and 2 of his request as described above was published on or around 18 June 2014 and that the documentation sought would relate to the period prior to or at and about that date. 

On 7 May 2019, the Council issued its internal review decision wherein it annulled its original decision and accepted that the original decision should not have issued before the eight-week response period provided for had elapsed. It said it regarded the applicant’s clarification of the timelines as sufficient to regard the request as a valid request and that it would issue a decision on that request by 4 June 2019.

On 23 May 2019, the Council issued its fresh decision on the applicant’s request for records wherein it granted access to three records.  On 20 June 2019, the applicant sought an internal review of that decision on the ground that further records of relevance to the matters identified at parts 1 and 2 of this request should exist.

The Council issued its internal review decision on 17 July 2019, wherein it said it had granted access to all relevant records held. It also provided a brief explanation of its authority and responsibility for making certain parking provisions for the road in question.

On 15 January 2020, the applicant sought a review by this Office of the Council’s decision on his request for records relating to the matters identified at parts 1 and 2 of his request, namely the changes to the parking arrangements on the northern side of the named road in question.

During the course of the review, and following a number of engagements with this Office, the Council identified a number of additional relevant records and released them to the applicant.  The Council also provided this Office with details of the searches carried out to locate all relevant records.  Ms Swanwick of this Office outlined the details of those searches to the applicant and informed him of her view that the Council was justified in refusing access to any additional records under section 15(1)(a).  She invited the applicant to make a further submission on the matter.

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision.  In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for access to additional records pertaining to decisions made in relation to parking on a named road other than those already released to him on the ground that no further relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, the Council provided details of the searches conducted to locate the records sought by the applicant.  As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.  In short, it described the searches carried out by the relevant sections within the Council.

The Council stated that the transport section carried out searches of its filing system and shared drive, using the name of the road, omnibus parking, bus parking, coach parking, pay and display, and a combination of same, as search terms.  It outlined that a file concerning coach parking, which contained details relating to changes from pay and display to coach parking on the named road, and a file concerning the coach parking study carried out in 2013, were identified and inspected for relevant records.  The Council also noted that the corporate services section carried out searches of Council Minutes for the relevant period, using coach parking, bus parking, and the name of the road as search terms.

The general thrust of the applicant’s argument is that further records authorising and supporting the relevant decisions made by the Council should exist.  According to the Council, the procedure for removing pay and display parking and introducing tour bus parking may include the preparation of a report by consultants, the publication of a notice in the local newspapers, and the advising of businesses and the Garda Síochána.  The Council also gave an explanation from a Senior Engineer in the transport section outlining which regulations provide for the general regulation and control of traffic, including the parking of vehicles, and pedestrians in public places.

In response to queries from this Office as to process taken and the records created in relation to the period between the publication of the coach parking study in 2013 and the publication of the notice in 2014 and other than in relation to the appointment of consultants, the Council stated that it was unable to provide any further detail.  It outlined that it could not consult three of the individuals referred to in the records released, as they no longer worked at the Council.  It acknowledged that there may have been emails in the personal accounts of the individuals involved but the email accounts were deleted in line with its email policy.  The Council stated that it did consult a Senior Executive Engineer, who had been a member of staff up to 2015 and had since re-joined the transport section, and she advised that she spoke to business representatives at the time.

It is, in essence, the Council’s position that no further relevant records exist apart from those already released.  It is important to note that the FOI Act is concerned with access to records held by public bodies.  If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice.

Having considered the details of the searches and the explanations given by the Council, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought in this case.  I find, therefore, that the Council was justified in refusing access to additional relevant records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the applicant’s request for further records pertaining to decisions made in relation to parking on a named road under section 15(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator