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Case 030520. Records relating to an agreement between a development company and Naas Town Council in relation to lands - records under the control of a public body but held by its legal advisers- section 2(5)(a) - whether the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken- section 10(1)(a) - service of notices requiring information to be furnished to the Commissioner- section 37(1).

Case Summary

Facts

The records sought related to an agreement between Naas Town Council and a development company on a proposal to transfer certain lands to public ownership. The Council released one record and adopted the position that it held no further records within the scope of the review. It said that there was no written agreement.

Findings

The adequacy of the search for any additional records was the central issue in the review. In particular, it transpired that the Council had not checked with its solicitors as to whether relevant records were held. In this regard, Section 2(5)(a) of the Act makes it clear that a reference to records held by a public body includes a reference to records under its control.

Although a number of records relating to the agreement were furnished to the Commissioner and the Council agreed to release most of these, it appeared that there were possible "gaps" in the records e.g. no records of meetings apparently held. The Commissioner found it necessary to serve notices under section 37(1) on the Town Clerk and on the Council's solicitors requiring them to furnish information and records relevant to the review.

The Commissioner expressed the view that whilst it is desirable that comprehensive records be retained where a public body or its agents are engaged in any significant aspect of public administration, it is not her function, in reviewing a decision to refuse access to records, to inquire into what reasons a public body or its agent might have had for not creating a record of a particular action or meeting. She found that the FOI Act does not provide for a right of access to records which ought to exist or require the creation of records in order to provide information which is not otherwise to be found in records already held by a public body.

Having considered the information provided by the Council, including descriptions of its records management and of the searches carried out at the instigation of her Office in the course of the review the Commissioner found that all reasonable steps had been taken to ascertain the whereabouts of the records. She upheld the decision of the Council to refuse access to further records under section 10(1)(a) of the Act.

Date of Decision: 24.12.2004

Our Reference: 030520

24.12.2004

Mr X

Dear Mr X

I refer to your application to the Information Commissioner for a review under the Freedom of Information (FOI) Acts, 1997 and 2003 of the decision of Naas Town Council (the Council) on your FOI request for access to records. The records that you sought are those relating to an agreement between Lehmex International Limited and Naas Town Council in relation to the rezoning of lands, known as Oldtown Estate, in the 1999 Development Plan. You specifically sought access to records relating to an agreement in writing dated 16 April 1999 between the Council and Lehmex International Limited (Lehmex).

Please accept my apologies for the delay which has arisen in dealing with this case. As you are aware from your contacts with my Office, a number of factors, including the volume of reviews on hands and difficulties encountered by my Office in the conduct of this review (details outlined below), contributed to this delay.

Background

It may be useful at this stage to set out some background in this case. As I understand it, a Deed of Conveyance from Lehmex to the Council dated 19 November 2001 transferred lands at Oldtown Estate (also known as Oldtown Gardens) to the Council. Apparently, the parcel of land conveyed comprised some 15.2 acres, whereas, in the course of submissions to the Council during the review of its Development Plan, Lehmex had indicated that some 20 acres were on offer if certain rezoning proposals were accepted.

The FOI request at issue here was received by the Council on 13 February 2003. The Council's initial decision was effectively to refuse access to the records. Although no reference was made to any of the exemptions contained in the FOI Act, the Council's letter of 12 March 2003 informed you that it had not entered into any written agreement with Lehmex in relation to the transfer of the lands. In addition, the Council provided some background information regarding the Development Plan process and the offer by Lehmex to transfer certain lands to the Council if the zonings it had sought were included in the Development Plan. A similar decision issued following your request for internal review; however, the decision maker at that stage released a copy of a record comprising a letter dated 16 April 1999. I understand that, subsequently, a copy of a map which was stated to have been attached to this letter was furnished to you by the Council. The letter, from a Project Management Company on behalf of Lehmex, made reference to the donation of 20 acres free of charge to the Council subject to the ratification of the Development Plan and the "beneficial zonings" of Lehmex's lands as displayed in the Draft Plan.

In reviewing this case, I have had regard to the following matters:

• the correspondence between you and the Council in relation to your request;
• your application to this Office and your submissions in the course of the review;
• the correspondence and contacts between the Council and this Office,
• the contents of records furnished by the Council and
• the provisions of the FOI Acts generally.

My Office also contacted Lehmex and put the company on notice that records which could potentially affect its interests might be considered for release under the FOI Acts. Lehmex outlined its role in the matter and stated that it had no objection to the release of any of the records held by the Council regarding its involvement in the Development Plan process or in the transfer of the lands at issue.

Scope of Review

In the course of the review, you agreed to narrow its scope to exclude certain material contained in records of the correspondence between Lehmex and the Council about the lands known as Oldtown Estate. The type of information thus excluded includes information relating to other lands and to the interests of third parties; this was confirmed to you in my Office's letter of 31 August 2004.

Furthermore, in her letter to you of 26 October 2004, Elizabeth Dolan, Investigator, explained to you that a right of access under the FOI Act would not arise in respect of a small number of records which were created before the Act came into force for local authorities on 21 October 1998. These "pre-commencement" records comprise submissions received by the Council during the review of the Development Plan and involve several sites as well as the Oldtown site. I understand that you are satisfied that these records will not form part of my review.

Following the intervention of my Office, the Council agreed in October 2004 to release a number of records which it held concerning Lehmex's submissions on the Naas Development Plan 1999 and the transfer of lands to the Council. I note that copies of these records have since been given to you subject to deletion of the information excluded from the scope of the review as described above. I return later in this decision to these released records insofar as they are relevant to the issues for determination in my review. However, I do not consider it necessary to issue directions to the Council in respect of the records already released to you.

The sole issue which remains to be decided in this review is whether or not the Council is justified in deciding that additional records relevant to the request do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

Before dealing with any potential exemptions in this case, I wish to make some preliminary observations. Firstly, it is important to note that section 34(12) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the public body concerned shows to the satisfaction of the Commissioner that the decision was justified.

In this case, my Office had to go to some lengths in order to obtain from the Council the information necessary to conduct the review and to enable me to come to a conclusion as to whether the Council's decision was justified. In the circumstances, I find it necessary to set out in some detail my Office's dealings with the public body involved since this is relevant to the central issue in the review - the adequacy of the search for records. One of the problems encountered was the Council's initial reluctance to accept that it held any records which fell within the scope of your request, other than the letter of 16 April 1999. When my Office accepted your application for review on 18 June 2003, it put a number of questions to the Council about any "agreement" or other records that it might hold in connection with Lehmex's submissions on the rezoning. In particular, my Office pointed out that records relevant to the matter might be held by the Council's legal advisers and that these should be forwarded for consideration.

When, on 7 July 2003, the Council forwarded a copy of submissions received from Lehmex during the Development Plan review together with records of some relevant Council meetings, it made no reference to any records concerning the transfer of the lands being held by its legal advisers or otherwise. The Investigator dealing with the review formed the view that the scope of your request was not restricted solely to the "agreement" of 16 April 1999 and that you had made it clear that your main concern focused on any records which would cast some light on how the acreage of land ultimately transferred was amended to 15.2 acres. Given the wording of your original request which included "... all documents relating to the agreement...", I concur with this view. Difficulties also arose in that it was unclear in some instances which copies or versions of maps were originally attached to the Conveyance and to other correspondence which formed part of the records forwarded by the Council.

Accordingly, on 2 February 2004, my Office put a large number of queries and requests for clarification to the Council. At the Council's request, officials from my Office met with an official of the Council on 26 February 2004 to discuss the matters raised. Further records were furnished by the Council at that meeting. However, it appeared to the Investigator that other information and records might still remain outstanding. It transpired that the Council had not checked with its solicitors as to whether relevant records were held. In this regard, Section 2(5) of the Act makes it clear that a reference to records held by a public body includes a reference to records under its control. It was explained to the Council that, whether or not the records fell to be released under the Act or, indeed, whether all of them were properly within the scope of the request, was a matter for the Commissioner and that the information requested was necessary to enable the review to be conducted. Further, the Council was reminded that under section 8(4) of the Act the reasons that a requester might have for seeking access to records should be disregarded.

Following lengthy and detailed correspondence from my Office on 18 March 2004, the Council addressed the queries raised in a letter dated 8 April 2004. Included among the further records furnished at this stage were copies of records held by the Council's legal advisers. The Council stated that a comprehensive trawl of all its records had been made and that all records had been collated and supplied to my Office.

On further examination of the records by the Investigator, it appeared that a number of issues still remained unresolved which suggested that it was possible that additional records exist or would reasonably be expected to exist. In particular, a number of meetings were mentioned in the records in respect of which no minutes or notes appeared to have been created by the Council or by its solicitors. The Council's attention was also drawn to the confusion remaining as to which maps were attached to various documents. The Council was asked to supply further information about its record management practices and the searches conducted for the records. Confirmation that the Council's legal advisers had supplied all records held by them in relation to the matter was also requested. Queries and observations from my Office on these and related matters were included in a letter dated 31 August 2004 sent to the Council with a request for a response by 21 September 2004.

At the Council's request, my Office agreed to extend the time limit for a response to our letter of 31 August 2004; the time limit was extended to 19 October 2004. The Council's submission was received on 21 October 2004 and addressed some of the issues raised by the Investigator. However, it stated that a response from the Council's legal advisers in relation to their file was still awaited. On 22 October 2004, my Office served notice under section 37 (1) of the FOI Act on Mr Declan Kirrane, Naas Town Clerk and on W.A. Osborne & Company, solicitors for the Council requiring them to furnish the information required. On 1 November 2004, my Office received a submission from the Town Clerk and from the solicitors enclosing some further records from the solicitors' file together with a written statement to the effect that all records held relating to the transfer of the lands had been furnished and that there were no records created of the meetings referred to in my Office's letter of 31 August 2004.

Comment

It will be clear from the above account of my Office's efforts to secure information necessary to carry out the review that an inordinate amount of time had to be spent in pursuing what were perceived as possible "gaps" in the records held. I should stress here that my review is not concerned with matters relating to the standard of general administration of the public body in question; such matters do not fall within the remit of the Information Commissioner. My comments in relation to the handling by the Council of this matter relate solely to my Office's review under the FOI Acts where the matter to be determined is whether the Council's contention, that no further records are held, is justified in all the circumstances. I make no comment in relation to any actions of the Council in reviewing the Development Plan or in relation to the land transfer.

In the normal course, my Office is understandably reluctant to invoke its strong statutory powers because to do so might impinge on the very good working relations which we enjoy in our dealings with the vast majority of public bodies. In this case, however, the approach to the review by the Council left me with no option but to invoke my powers under section 37 of the FOI Act. The Council had assured my staff at all times of its utmost co-operation and said that it had gone to "extreme lengths" to comply with my Office's requests for information. Nonetheless, it is clear from the sequence of correspondence that specific questions, central to an assessment of the adequacy of the search, were not responded to as promptly and as thoroughly as I would expect. This situation is all the more disappointing when one considers that, in our notification of 18 June 2003 to the Council of our acceptance of the review application, we drew the Council's attention to the Guidelines on Adequacy of Search published by my Office; we also put the Council on notice that copies of all relevant correspondence, including that held by the Council's legal advisers, would be required. Furthermore, at all stages during the review, the Investigator concerned explained to the Council in great detail the precise information required and the reasons why it was being sought.

I note that the Council now accepts that there were deficiencies in its record management system in relation to this matter and that it states that steps are being taken to implement an improved system. The Council also states that the correspondence received in relation to the review of the 1992 Development Plan was very extensive and placed a considerable burden on its staff and its record management capacity; the records sought by you form part of this wider and very extensive correspondence.

Findings

Whether Further Records Exist: Section 10(1)(a) Although it did not state this in its decision, the Council's position is that it is claiming an exemption under section 10(1)(a) of the FOI Act which states:

"10.(1) A head to whom a request under section 7 is made may refuse to grant the request if(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ...."

As my Office has already explained to you, my approach in cases of this nature (where a public body has decided that the records requested cannot be found) is that this Office is not required to carry out a search for the records in question. Instead, our role in these cases is one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, regard must be had to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. My role is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether he or she was justified in coming to his/her decision in the case.

It should be noted that the previous Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) where he said:

"I am satisfied also that the respondent's understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

Searches The Council provided the following information regarding its searches for the records at issue in this review. It states that the Town Clerk and another member of staff searched all of the files referring to the Draft Development Plan. In particular, the files containing submissions by Lehmex and by Bandenbury Limited (a sister company of Lehmex) were checked as well as the general filing systems in the Town Clerk's Office and the Town Engineer's Office. Records were found on various files; for example, a letter dated 8 May 2000 from Mr Dermot O'Rourke of Lehmex to the Town Clerk was located on the Bandenbury submissions file (File No. 91).

The Council says that submissions received during the review of the Development Plan were date stamped, given a number, entered on a database and filed on lever arch files. The database contains a brief synopsis of each submission. My Office requested and examined a copy of the synopsis of the Lehmex submission; it comprises one row of a table with details of receipt of the submission and the entry under a column headed "Offer to Naas UDC" reads "Gardens donat".

Copies of files entitled "Copy of submission No. 63 Lehmex International Ltd" and "0.26 Oldtown Transfer of Land" were supplied to my Office together with copies of minutes of the relevant Town Council meetings and correspondence between the Council, its solicitors and the parties involved in the transfer of the land. Those records created after the coming into operation of the FOI Act for local authorities (21 October 1998) have been released to you by the Council subject to the deletions notified to you by Ms Connolly of this Office. In all, I understand that on 11 November 2004 the Council released to you over ninety such records identified by my Office. I note that your submission dated 1 December 2004 was prepared following your examination of these documents.

The Council says that neither the Town Manager nor the Senior Executive Planner, who dealt with the Development Plan review, are still employed by Kildare County Council; the Council says that its files hold no written reports from them or from the Town Engineer in relation to the transfer of the lands at issue. According to the Council, any presentations given to the elected members at meetings, held in the course of the Development Plan review, were oral presentations and this would be the normal procedure.

Whether further records existYou make the case that, if the initial offer by Lehmex of 20 acres was reduced due to the fact that Lehmex was not successful in respect of all the rezoning it sought, it is only logical to expect that a paper trail exists as to how the figure of 15.2 acres came about. In relation to the actual acreage, I believe that it is not in dispute that the area of land actually transferred is 15.2 acres. You say that your request was focused on finding out how this was decided and what criteria were used to arrive at the 15.2 acres as opposed to any other area of land. My Office has put this issue to the Council on a number of occasions in the light of the records examined and the sequence of events leading to the conveyance of the lands. The Council's position has been reiterated in writing to my Office in several submissions. It states that no communication occurred between it and Lehmex regarding the change from 20 acres to 15.2 acres. Further, it says that, apart from the maps held, the Council holds no records noting the acreage of the transferred parcel of land at 15.2 acres. The Council accepts that in some instances it has not been able to ascertain from its records which map was enclosed with particular correspondence. According to the Council, other than the letter of 16 April 1999, there was no agreement entered into with Lehmex regarding the handover of Oldtown Gardens.

In the course of the review, my Office identified certain records which appeared to have been in existence at one time, or which one might reasonably expect to have been created, but which were not among the records disclosed by the Council. In the correspondence already detailed earlier in this decision, queries were put to the Council in relation to the circumstances of the creation and the whereabouts of those records. For example, in correspondence of 30 October 2001 to the Town Clerk, Brown & McCann, solicitors make reference to their letter of 8 October 2001. The Council states that a search of all the relevant files failed to locate a copy of this record. It was also put to the Council that an agreement under section 38 of the Local Government (Planning and Development) Act, 1963 (now section 47 of the Planning and Development Act, 2000), which provides for agreements restricting or regulating the development and use of land, might have been entered into in the context of land transfer. The Council's response was that, whilst such legal agreements were entered into with other landowners who transferred land for "community gain", a section 38 agreement was not entered into in this instance. I note that the text of the Indenture made on 19 November 2001 conveying the land to the Council reflects this position.

One particular class of records which my Office considered of potential importance is the records of meetings where the land transfer was discussed. As you know, there is a number of references in the released records to such meetings including meetings held or planned to be held on 10 February 1999, 16 February 1999, 19 April 1999 and 28 June 2001. You have stressed in your submission that you believe that notes or minutes of the meeting of 29 June 2001 between the Town Clerk, the Council's solicitor, Mr Tony Osborne and Mr Dermot O'Rourke of Lehmex and his solicitor would have been created since this meeting appears to have been one of some significance. I note that the Council's letter of 29 June 2001 to Mr Osborne of Brown & McCann, solicitors states that, further to the meeting of 28 June 2001, "all of the issues in relation to the transfer of Oldtown Gardens" had been clarified. In addition, there is reference to what apparently is the same meeting in a hand-written memorandum (undated and unsigned) headed "Lehmex International Ltd to Naas UDC" which was among the records released to you. The latter record was forwarded to my Office as part of the file on the matter held by the Council's solicitors.

In putting this issue to the Council, my Office expressed the view that it appeared unusual that a record of this meeting was not made and it offered the Council an opportunity of commenting on the existence or otherwise of notes or minutes created or held by it. The Town Clerk's response was that, as regards the meetings identified, his recollection is that they were short meetings and that no formal record of them was created. I should say also that Mr Dermot O'Rourke of Lehmex stated to a member of my staff that, whilst he recalled the meeting of 28 June 2001, he did not recall any minutes or notes having been prepared. Subsequently, following the serving of notice by my Office under section 37 of the Act, the Council stated in writing that no records were held of any meetings held between the Council and Lehmex or solicitors for that company. The Council's solicitors also stated in writing that they held no further records concerning the land transfer.

I note that you do not accept the Council's position on the issue of minutes of the meeting. You point to the reference to minutes in the hand-written memo. The relevant reference is: "D) Meeting 28th June 2001 - issues clarified? Minutes of same."

It seems to me from the content and style of this memo, which comprises a series of notes or points on mainly legal matters - many of which are preceded by a question mark - that it is possible that the author may have been querying whether there were any minutes of this meeting.

Clearly, it is desirable that comprehensive records be retained where a public body or its agents are engaged in any significant aspect of public administration; and, in this context, the transfer of lands to public ownership must surely count as being significant. That said, however, I do not see it as my function, in reviewing a decision to refuse access to records, to inquire into what reasons a public body or its agent might have had for not creating a record of a particular action or meeting. Similarly, it is not my function as Information Commissioner to interpret records such as maps prepared at various stages prior to finalising the Deed of Conveyance. Neither can I comment on whether meetings or other contacts in this case (of which records have been found) were central to the issue which concerns you, i.e. how the figure of 15.2 acres came about. In other words, I consider that it would not be appropriate for me to speculate as to whether, if certain records were to be found, there is a likelihood that these would contain the information which you seek. The FOI Act does not provide for a right of access to records which ought to exist; that right applies only to records which actually exist. Neither does the FOI Act require the creation of records in order to provide information which is not otherwise to be found in records already held by a public body.

In this regard, I note that section 18 of the FOI Act does provide, in certain circumstances, for the right of a person to a statement of reasons for the act of a public body. However, in order for this provision to apply, you would have to have a material interest in the matter to which the act relates so that the consequences or effect of the act may be to confer on you, or withhold from you, a benefit or advantage without also conferring it on or withholding it from persons in general or a class of persons of which you are a member. Notwithstanding this, my jurisdiction in carrying out a review in the present case is confined to reviewing the decision of the Council on your request for access to records under section 7 of the FOI Act.

Having reviewed the steps taken by the Council to locate any additional records and having regard to the records released following the intervention of my Office, I now consider that all reasonable steps have been taken to ascertain the whereabouts of such records. I appreciate that you wish further action to be taken to ascertain the whereabouts and contents of any minutes of the meeting of 28 June 2001. However, I am satisfied that my Office has used all the powers available to it to conduct this review thoroughly and properly. Accordingly, while fully acknowledging the importance to you of the records requested and your dissatisfaction with some of the explanations put forward by the Council, I am satisfied that it is reasonable to conclude, in the light of the efforts made to locate them, that further records either do not exist or cannot be found at this time. I find, therefore, that to the extent that the Council's decision was to refuse your request under section 10(1)(a) of the FOI Act, this decision was justified in relation to any further records additional to those already released to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I hereby affirm the decision of Naas Town Council in this case.

Yours sincerely

Emily O'Reilly
Information Commissioner