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Case Number: 150404

Whether the Council was justified in refusing to release additional records other than those already released in response to the applicant's request for records relating to submissions made by the Council in a previous review concerning the applicant and the Council

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

On 24 August 2015, I issued a decision in Case 150140 involving the applicant and the Council, affirming the Council's decision to refuse a request on the ground that it formed part of a pattern of manifestly unreasonable requests from the applicant. On 1 October 2015 the applicant made a fresh request to the Council seeking "the record of any invitation by the OIC to make a submission" and "any submissions made by Carlow County Council to Mr Christopher Campbell of the OIC" in the period May to August 2015 in Case 150140.

On 14 October 2015 the Council decided to grant the request and released copies of certain correspondence between the Council and this Office. On 21 October 2015, the applicant sought an internal review of this decision. The Council's internal review decision of 11 November 2015 identified and released five records to the applicant. On 18 November 2015 the applicant sought a review by this Office of the Council's decision as he was of the view that further records existed.

During the course of this review, Ms Sandra Murdiff of this Office, contacted the applicant and informed him of her view that the Council was justified in its decision to refuse to release further relevant records under section 15(1)(a) of the FOI Act on the ground that no such records exist. He indicated in correspondence with this Office that he did not agree with her view. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In conducting this review I have had regard to the communications between the Council and the applicant on the matter, and to the correspondence between this Office and both the Council and the applicant. I have also had regard to the contents of this Office's case file relating to Case 150140 for the purposes of this review.

Scope of Review

The scope of this review is solely concerned with whether the Council was justified in its decision not to release further relevant records to the applicant in relation to records of any invitation by this Office to the Council to make a submission and any such submission made.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases 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 his/her decision. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.

In correspondence with this Office, the Council has confirmed that the records released to the applicant in relation to his request include the following:

1. Letter from this Office to the Council dated 22 May 2015 notifying it of an application to this Office and requesting "a copy of the records which are the subject of the request".
2. Acknowledgement from the Council to this Office dated 27 May 2015.
3. Email from this Office to the Council dated 16 June 2015 reminding the Council to submit the records requested above.
4. Email from this Office to the Council dated 15 July 2015 requesting a submission in relation to the case.
5. Submission from the Council dated 16 July 2015.
6. Email from this Office to the Council dated 18 August 2015 requesting a sample of the applicant's previous FOI requests.
7. The Council's reply dated 18 August 2015, including 11 attachments.

In my view, only records 4 to 7 above are relevant to this review as they are the only records which could reasonably be described as relating to the seeking or making of a submission in Case 150140.

Records 1 to 3 relate to a request made by this Office to the Council for copies of the records sought by the applicant in the request that was the subject of review in Case 150140, referred to as the subject records. However, given that the Council had refused that request under section 15(1)(g) on the ground that it formed part of a pattern of manifestly unreasonable requests from the applicant, such a request for the subject records should not have been made by this Office. Generally speaking, a refusal under section 15(1)(g) would not involve an examination of the subject records, as the FOI body is not claiming that an exemption applies to the information contained in specific records, but rather that the request is being refused in its entirety on administrative grounds. When this Office became aware of the error, Ms Kelly of this Office informed the Council by telephone on 23 June 2016 that the subject records were not required. In any event, I am satisfied that the exchanges of correspondence between this Office and the Council in relation to the subject records cannot reasonably be described as relating to the seeking or making of a submission on the review and that they are not within the scope of the request

The Council's position in this case is that all records from this Office requesting submissions in relation to Case 150140 and all submissions provided in response have been released to the applicant. The Council has stated that it undertook a search of the manual file relating to the review by this Office of its decision in Case 150140 to locate these records. It also stated that all details in relation to FOI are retained by the Council's FOI Liaison Officer and this would include a printed copy of any emails sent or received in relation to the file. In essence, it is of the view that no further relevant records exist.

From my examination of this Office's case file in Case 150140, I am satisfied that records 4 to 7 above are the only relevant records that I would expect the Council to hold. Accordingly, I find that the Council was justified in its decision not to release any further records to the applicant in relation to his request, on the basis that they do not exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision to refuse to release further records to the applicant 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