Whether the Council was justified in refusing access to additional records relating to the applicant under section 15(1)(a) of the FOI Act

21 February 2023

Background

In a request dated 6 February 2022, the applicant-�s son sought access to records concerning particulars of a junction upgrade throughout all phases. The request related to the decision, conversation and correspondence in relation to the access and exit of the described location. The request sought any correspondence, notes of records or meetings that possibly indicated any safety issues or other concerns that were raised or considered. The request specified the Transport and Planning section as relevant, and referenced any correspondence to third parties such as Transport Infrastructure Ireland (TII) and the National Transport Authority (NTA). Initially, the Council quoted fees for the request due to the estimated time for search and retrieval. The applicant refined the request several times to avoid fees being charged. Eventually, on 25 May 2022, the request was refined to correspondence to, from and cc-�d to one Council employee in respect of the below:

-� any correspondence with third parties such as TII, Construction Companies, etc., when the correspondence includes safety concerns and malfunctioning exit/entrance issues.-�

-�-�the main issue is the numerous safety and malfunctioning light issues. Any email related to these issues at the property should be included.-�

In the decision, which issued on 27 June 2022, the Council granted the request and released three records, consisting of emails and attachments. The applicant sought an internal review. The internal review decision was issued on 12 August 2022. The internal review upheld the original decision.

On 24 October 2022, the applicant applied to this Office for a review of the Council-�s decision. In his application he set out that, he was unhappy with the manner in which the Council had sought refinement of his request, and had originally quoted him €3500 for search and retrieval in respect of the original request. He has argued that the records eventually released did not reflect this.

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 relevant parties who made submissions, the applicant-�s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether further records exist in respect of the applicant-�s refined request. The Council maintain that no further records exist, this is effectively a refusal to grant any further records under section 15(1)(a). This Office has no power to adjudicate on the issue of estimated search and retrieval fees as the final request was not subject to any estimated costs.

Preliminary Matters

It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This Office cannot extend the scope of this review to include any comments on the FOI body-�s function.

Analysis and Findings

Section 15(1)(a) -� Adequacy of Searches

Section 15(1)(a) provides that an FOI body may refuse to grant a request where 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 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 his/her 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.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. This Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

Having sought clarity from the Council on the specifics of the issues between the property and the Junction upgrade, it has outlined that there is an ongoing safety issue regarding the exit/entrance of the property onto the Junction. The Council states that it has attempted to mitigate this with the use of sensors that detect vehicles, it uses lights which turn orange to allow vehicles proceed with caution on to the road.

Submissions

The Council provided this Office with details of searches it carried out to locate records relevant to the applicant-�s request, details of which were provided to the applicant during the course of the review. While I do not propose to repeat that description, I can confirm I have had regard to those details in full. In summary, the Council contends that no further records exist in relation to this request. It states that the decision maker in the Transport Section carried out the search. It clarified that this included searches of a mailbox, archived emails and the personal drive of the named employee. It states that keywords used in the search included the applicant-�s surname, the name of the junction, and words such as -�Entrance-� and -�traffic signals-� -�traffic lights-�. It has argued that the keywords would have produced third party correspondence with Transport Infrastructure Ireland (TII) and Construction Companies.  It states this was in addition to hard copy files, which an Administrative Officer searched. It states that a focussed search was carried out on the internal database by the decision maker. This database is for recording all files opened/closed/destroyed -� this search produced no results. The Council further stated that the searches took place within the date ranges specified.

I provided the applicant with a summary of the Council-�s submissions and an opportunity to provide comments or observations in reply. The applicant has argued that he believes the Council have evaded fulfilling the FOI request, and that it is his view that the Council never engaged with the process in a meaningful way from the beginning.

In conjunction with his submissions, the applicant has provided copies of records, which he received as part of a separate FOI request with TII. The records in question include emails which were sent and cc-�d to the named employee concerning the property and minutes of steering committees. The records relate to the relevant roundabout upgrade, but do not contain explicit reference to safety issues or malfunctioning lights as specified in the applicant-�s request; rather they appear administrative in nature and seem to concern the overall upgrade to the junction. While I note that the Council however, did not include TII or any named construction companies in the keywords used as part of its searches, it is not clear to me that the records released from TII come within the scope of the request to Galway City Council. There are no explicit references to safety, maintenance or light issues at the junction/property.

It is apparent that there are further records concerning this property and junction upgrade which exist, however, I must determine whether GCC have conducted reasonable searches for records within scope of the specific request which the applicant submitted. Upon consideration of the wording of the applicant-�s request, the information which was released from TII, does not come within the scope set out by the applicant in the refined request which was submitted to Galway City Council.

It is important to note that section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned take all reasonable steps to locate relevant records. Furthermore, public bodies are not required to search indefinitely for records in response to an FOI request. This Office may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

Given the scarcity of relevant records located following the refinement of the request, I sought to clarify with the Council why no further records existed in relation to the request. I spoke with the relevant employee whose emails were sought by the applicant. In essence the positon was, that while there are a substantial amount of records relating to the Junction Upgrade overall, the scope had been narrowed to emails received by one individual and only where they concerned safety concerns and malfunctioning exit/entrance issues.

Having considered the submissions provided by the Council, it is not clear to me that all reasonable searches have been carried out to locate all records relevant to this request. In particular, I note the limited search terms used as part of the search. The refined request contains specific references to safety concerns, and malfunctioning exit/entrance issues, and a junction. The search terms used, although they mention lights and entrance, do not reflect the specific wording of the request. I am not satisfied further records would not have been retrieved had the searches been expanded to use the wording of the request in conjunction with the applicants name, or junction. I am conscious given the wording of the request, and the description of the issues concerning the entrance/exit of the applicant-�s property, that there could be a broader scope of -�safety concerns-�.

I wish to further note that in the decision and internal review decision, it appears that the Council took a narrow view of the request, as it stated the request as the following -�All emails sent directly to, issued from and cc-�d to the named employee which related to the following: -�main issue is numerous and malfunctioning light issues. Any emails which related to these issues at the property should be included.-� However, in an email which issued from the Council to the applicant in May 2022 agreeing upon the wording of the request, it specifically states that it was including correspondence relating to -�safety concerns-�, which it does not appear the Council have considered.

On that basis, I am not satisfied that the Council has carried out all reasonable searches in an effort to ascertain the whereabouts of records coming within the scope of the applicant-�s request. Accordingly, I find that the Council was not justified in its effective decision to refuse access to additional records on the basis of section 15(1)(a) of the FOI Act.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council, the effect of which 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 internal review and review by this Office if necessary.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access, under section 15(1)(a) of the Act, to additional records coming within the scope of the applicant-�s request and I direct the Council to undertake a fresh decision making process in respect of the request.

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.
 

Rachael Lord
Investigator