Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a waste permit review application for a named waste management facility on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

3 August 2022

Background

Donegal County Council is responsible for the licensing of certain waste facilities under the Waste Management (Facility Permit and Certificate of Registration) Regulations 2007 as amended (the Regulations). This includes managing applications for a review of existing waste facility permits.

In a request dated 5 July 2021, the applicant sought access to records relating to an application for review of a permit for a named waste management facility that was received by the Council in 2016. Specifically, he sought the date the Council received the application and a copy of all actions taken on the waste permit review application from 2016 to the date of his request. In a decision dated 3 August 2021, the Council refused the applicant-�s request under section 15(1)(i) of the Act on the basis that the Council had released the information to the applicant in response to a previous request he made for the same information in March 2021. The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request. On 1 February 2022, the applicant applied to this Office for a review of the Council-�s decision.

Following engagements with this Office, the applicant made a submission in which he argued that the Council should hold additional records, pursuant to its obligations under the Waste Management (Facility Permit and Registration) Regulations 2007 (the 2007 Regulations).

Following receipt of the details of the applicant-�s submission, the Council conducted further searches and located and released two records it deemed relevant to the request. In its submissions to this Office, it provided details of the searches undertaken to locate relevant records and of its reasons for concluding that no additional records exist. The Investigating Officer provided the applicant with those details invited him to make further submissions if he wished. To date, no reply has been received from 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 correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Council refused the applicant-�s request under section 15(1)(i) of the Act on the basis that it had previously released the records sought in this case, the applicant considers that further relevant records should exist.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant-�s request other than those already released on the ground that no further relevant records exist or can be found.

Preliminary Matters                                                                                                       

It is important to note that this Office has no role in examining complaints about how the Council carries out its functions in relation to waste permit applications. Furthermore, the FOI Act does not require FOI bodies to create records if none exist. Consequently, a review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records.

Analysis and Findings

Section 15(1)(a) of the 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 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.

In his submissions to this Office, the applicant argued that the Council did not provide him with the following records (or records which contain the following information):

1. The date the Council received the review application for the waste facility in question.
2. A copy of the receipt for the fee paid for the review application -�that was readable-�.
3. A copy of records of all communication with the named waste facility, its agents or other agencies.

The applicant argued that pursuant to article 31(1) of the 2007 Regulations, a record should exist to verify the review application was received 60 days before the expiry date of the permit. He also argued that pursuant to article 32, a record should exist of notification to the Environmental Protection Agency of the review and of the decision that must be made within 25 working days from the date of submission of an application for review

In its submissions to this Office, the Council provided details of previous requests received from the applicant relating to the records sought in this case and its decision on those requests. The Council explained that it received an Access to Environmental Information request from the applicant in September 2020 (reference AIE/03/2020) in which he requested various records relating to the waste permit application for the named facility. In its decision on that request, the Council released 64 pages in full and 6 pages in part with the redaction of third party personal information. In that case, the Council refused access to records in relation to the steps taken under Article 31 through to Article 35 of the Waste Management Regulations on the basis that the records did not exist.

The Council also provided details of its decision in relation to a similar FOI request made by the applicant in March 2021 (reference FOI 27/21). In its decision on FOI 27/21, the Council released 31 pages of records to the applicant, including correspondence with the named facility. It redacted personal information and a small amount of text it considered to be commercially sensitive. The Council also provided the applicant with details of the searches it carried out to locate the records sought in that case which included the Waste Facility Permit hardcopy file, the Waste Facility Permit computer file and the emails of its Waste Regulation Officer and Assistant Waste Regulation Officer.

The Council argued that the specific information requested by the applicant in his submissions to this Office was not asked for in his previous FOI requests and does not appear on the Waste Facility Permit hardcopy or softcopy files that it searched.

In response to the applicant-�s contention that he did not receive a record of the date the Council received the permit application or a copy of the receipt for the fee paid, the Council said that these records were supplied to the applicant in the records it released to him in reply to AIE/03/2020. The Investigator explained this to the applicant in his correspondence dated 1 July 2022 and invited the applicant to comment on whether he had these records. However, as noted above, the applicant has not responded to the Investigator-�s correspondence to date. I have no reason to dispute the Council-�s position that it previously released a copy of these records.

With regard to records concerning steps taken in relation to Articles 31 and 32 of the Waste Permit Regulations, the Council said that there is no record of this on the files it searched. The Council said it also searched other Waste Facility Permit files and stated that the specific information requested by the applicant is not held on these files. The Council argued that this information was not withheld from the applicant, but rather that it does not exist.

The Council said that it consulted with the Waste Regulation Officer who advised that at the time the particular Waste Facility Permit application was received, the position of Assistant Waste Regulation Officer, with responsibility for managing waste permits, had been vacated and another member of staff had temporarily been assigned to this role. The Council said that this member of staff has now retired from the Council. It said it searched the -�Environment Drive-� of its computer system and retrieved a spreadsheet entitled -�Register of Permits and Certificates-�. The Council said that this spreadsheet was used by the Assistant Waste Regulation Officer to record dates and timelines of permit applications. The Council released the relevant extract from this spreadsheet to the applicant during the course of this review which contains information relating to the named waste facility.

The Council said that there is no written record on file to validate the decision date of 22 December 2016 that appears on the spreadsheet mentioned above. The Council believe the date the application was received as recorded on the spreadsheet is incorrect. It said it also appears that the spreadsheet was used temporarily as it is not complete and is not currently used. The Council noted that it has a large number of Waste Facility Permit applications that are not recorded on this document.

The Council acknowledged that the practices and procedures in the management of waste facility permit files need to be reviewed, improved and documented in accordance with the Waste Facility Permit Regulations. It said that no written record of the Council-�s decision exists in relation to the granting of the waste facility permit review in question. It said the decision on the Waste Facility Permit may have been communicated verbally to the named facility as there is no written communication of this decision on file. It said no records had been destroyed in relation to this process.

It seems to me that the applicant had good reason to expect that certain records should exist detailing the Council-�s compliance with the provisions of the 2007 Regulations. Nevertheless, as I have outlined above, a review by this Office is not concerned with the question of what records should exist, nor is it concerned with the appropriateness, or otherwise, of the Council-�s actions in relation to the manner in which it processed the waste permit review application. The question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the Council-�s submissions, and in the absence of evidence to suggest that other relevant searches are required, I find that has. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, any further relevant records on the ground that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 15(1)(a) of the Act, to any further records other than those already located and released on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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