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Whether the Council was justified in its decision to refuse access to further records sought by the applicant relating to the Dublin Waste-to-Energy's Community Gain Fund on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted an FOI request to the Council on 5 March 2015 for all correspondence within the Council and between the Council and Covanta relating to the ""Capital Contribution Equivalent to 3% of the Capital Cost" that will be put into the Waste-to-Energy project's Community Gain Fund, and how that 3% has been calculated". The Council issued a decision on 23 April 2015, in which it released records relating to the original proposal for a 3% capital contribution and provided links to certain publically available documents of relevance. The applicant sought an internal review of the Council's decision on 1 May 2015 as she considered that the Council had not released all relevant documents. The Council issued an internal review decision of the applicant's request on 25 May 2015, in which it released one further record to the applicant. The applicant sought a review by this Office of the Council's decision on 26 August 2015.

During the course of the review and following correspondence with this Office, the Council released certain records to the applicant relating to the administration of the Community Gain Fund. I note that Mr Art Foley of this Office wrote to the applicant on 9 December 2015 and 1 March 2016, providing details of the searches the Council conducted for records coming within the scope of her request, and of the Council's rationale as to why no further relevant records existed. Mr Foley further informed the applicant of his view that the Council had taken all reasonable steps in order to search for relevant records. The applicant has requested that this review be brought to a close by issuance of a formal, binding decision.

In conducting this review I have had regard to correspondence between the applicant and the Council, to correspondence between the applicant and this Office, to correspondence between the Council and this Office, and the contents of the records released to the applicant.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing access to further records relating to the capital contribution to the Community Gain Fund on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public 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 his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie)

The Council, in submissions to this Office dated 24 November 2015 and 16 February 2016, provided details of the searches it undertook in order to locate further records within the scope of the applicant's request. As I have outlined above, Mr Foley has provided the applicant with the details of the searches performed by the Council, its records management policy, and its rational as to why no further records within the scope of her request exist. While I do not propose to repeat those details in full in this decision, I confirm that I have had regard to them for the purposes of this decision.

The Council stated that the Waste Policy Unit in the Environmental and Transport Department was searched for records within the scope of the applicant's request, and that these searches were performed both manually and electronically. It also stated that the email accounts of staff were searched for records. The Council stated in its submission that any records relating to the Community Gain Fund would be held by the Project Team, and that there is no indication that any records sought may have been archived, misfiled or misplaced.

In relation to its view that no further relevant records exist, the Council explained that the Dublin Waste to Energy Project is being developed under a Public-Private Partnership between the Council (on behalf of the four Dublin Local Authorities) and Dublin Waste to Energy Ltd. It stated that the Invitation to Negotiate documents relating to the project, issued in November 2003, included a requirement that bidders set out a proposal for a Community Gain Fund equivalent to 3% of the capital cost of the facility. Covanta acquired a controlling interest in Dublin Waste-to-Energy Ltd. in May 2007. The Council stated that the capital contribution amount has not been the subject of correspondence, internally or with Covanta, as it was included in the contract documents before Covanta became a party to the Waste-to-Energy project. Furthermore, the fund requirement had been part of the project's Invitation to Negotiate documents.

The Council stated that the Capital Contribution was proposed in the project's Environmental Impact Statement, and incorporated into the planning permission granted for the project by An Bord Pleanála in November 2007. The Council explained that it is the responsibility of Dublin Waste-to-Energy Ltd to comply with the conditions included in the planning permission for the project, including the contribution to the Community Gain Fund and that the Fund was established in September 2014. Furthermore, the Council stated that further records relating to the Community Gain Fund do not exist as the Fund was not an element of the Waste-to-Energy project which attracted comment or attention until relatively recently, having regard to the length of time which the project has been ongoing as a whole.

Having considered the submissions of both parties, the steps taken by the Council to locate records, and the Council's rationale as to why no further records exist, I am satisfied that the Council has taken all reasonable steps to locate records within the scope of the applicant's request. I find, therefore, that the Council's decision to refuse the applicant's request for further records under section 15(1)(a) of the FOI Act was justified on the basis that no further relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council.

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