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Case Number: 150423

Whether the Council was justified in its decision to refuse access to further records relating to the installation of footpaths at New Road, Glebe, Straffan, Co. Kildare on the ground that no further relevant records could be found

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 made a request to the Council on 24 July 2015 for records relating to the installation of footpaths at New Road, Glebe, Straffan, County Kildare, including documents, maps, records, surveys and inspection records.

On 11 August 2015, the Council released one record to the applicant and refused a second on the basis of commercial sensitivity (section 36(1) of the FOI Act refers). It also stated that records relating to his request may be held on the relevant Planning File, which was available for public inspection, and that section 15(d) of the Act applied in this regard. The applicant sought an internal review of that decision on 20 August 2015, stating that the records identified related to the incorrect footpath.

The Council issued an internal review decision on 11 September 2015, apologising for its misinterpretation of the applicant's original request, which it said led to the incorrect footpath being identified. It released four additional records relating to the applicant's request. On 30 November 2015, the applicant sought a review by this Office of the Council's decision and suggested that further relevant records exist.

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.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to additional records on the ground that no further records exist or can be found.

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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. 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. It is not normally the Commissioner's function to search for records that a requester believes are in existence.

During the course of the review, Ms Sandra Murdiff of this Office contacted the Council and sought details of the searches undertaken to identify all relevant records coming within the scope of the request. The Council has since indicated that additional records have been located that have to be examined for relevance. In response, the Council stated that additional records have been located following further searches. These include records relating to representations made by a former Deputy in favour of the construction of the footpath concerned, tender documents, an invoice and diary entries relating to various inspections of the footpath during its construction by a Council staff member. Having regard to the foregoing, I am satisfied that further relevant records exist that have not been considered for release. Accordingly, I find that the Council was not justified in deciding, under section 15(1)(a) of the FOI Act, that no further records coming within the scope of the applicant's request exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council in this case. I direct it to undertake a fresh decision making process in respect of the applicant's request, to include consideration for release of those records located during the course of this review.

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.

Stephen Rafferty
Senior Investigator