Whether the Council was justified in refusing, under section 15(1)(a) of the FOI Act, to grant access to an environmental file held by a service provider on the ground that the Council does not hold the file within the meaning of the Act

22 August 2019

Background

On 19 February 2019 the applicant submitted a request to the Council for a copy of an “environmental file” that was maintained and retained by a service provider to the Council (the Contractor) in connection with works carried out on the Kilkenny Central Access Scheme (KCAS).

The Council refused the request under section 15(1)(a) of the FOI Act on the ground that it did not hold the record sought. Following a request for internal review, the Council affirmed its decision to refuse the request.

The applicant subsequently sought a review by this Office of that decision. During the course of the review this Office provided the applicant with details of the submissions made to this Office by the Council in support of its decision and by the Contractor regarding its view on the matter. The applicant was offered an opportunity to make a further submission on the matter, which he availed of. 

I have now decided to conclude the review by way of a formal, binding decision. In conducting the review I have had regard to the communications between the applicant and the Council as set out above and to the correspondence between this Office and the applicant, the Contractor, and the Council on the matter.

Scope of the Review

This review is confined to the question of whether the Council was justified in refusing to grant the applicant’s request for a specified environmental file under section 15(1)(a) of the FOI Act on the ground that it does not hold the record for the purposes of the Act.

Preliminary Matters

I wish to make a number of comments before addressing the substantive issues arising. First, it is important to note that it is not within the remit of this Office to examine the manner in which public bodies carry out their administrative functions.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

It is not in dispute that the Contractor holds the file at issue in this case. The applicant’s argument is that for the purposes of the FOI Act, the file is deemed to be held by the Council, while both the Council and the Contractor take the view that the file is held by the Contractor for its own purposes.

Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.

It is agreed in the present case that the Contractor worked on the relevant project under a contract for services. It is also agreed that the file at issue was referenced in an environmental management plan created pursuant to that contract. The question I must consider, therefore, is whether the file sought relates to the service provided by the Contractor.

The Contractor argued that the file does not relate to the service provided to the Council and that it does not form part of the contract deliverables for the contract in question. It stated that while it was required to develop the environmental management plan for the KCAS as part of the delivery of the contract, there was no such requirement to prepare the environmental file, nor did it form part of the contract.

The Contractor added that the file is an internal company management tool which was prepared as part of the internal company environmental system and environmental procedures notwithstanding any particular contract for services which was in existence. It stated that the file relates to the internal processes, procedures and company management insofar as same relates to matters of the environment and not to the services provided. It argued, therefore, that the file does not relate to the service provided to the Council or form part of the contract deliverables.

The Council stated that it did not seek the file, nor did it have any requirement for it, as part of the delivery of the contract. In essence, it accepts the Contractor’s explanation of the nature and purpose of the file. It does not accept that the file relates to the service provided by the Contractor.

Section 11(9) essentially ensures that records generally held by public bodies in relation to the provision of public services are not excluded from the provisions of the Act purely because particular services are, or have been, delivered by service providers on their behalf.

However, this does not, in my view, mean that all records held by such a service provider that relate to the service provided, no matter how remote the link, may be deemed to be held by the public body concerned.

A key factor in this case is that the file sought was prepared by the Contractor as an internal management tool notwithstanding any particular contract for services which was in existence.

Having regard to the explanation provided by the Contractor, and to the Council’s confirmation that it did not seek the file, nor did it have any requirement for it, as part of the delivery of the contract, I am satisfied that the file does not relate to the service provided for the purpose of section 11(9).

I find that section 11(9) does not apply and that the file is not held by the Council within the meaning of the Act. In the circumstances, I find that the Council was justified in refusing the applicant’s request under section 15(1)(a) on the ground that it holds no such record.

For the sake of completeness, I wish to address the applicant’s concerns as to the ability of this Office to determine the question of whether the Council holds the file for the purposes of the Act without examining its contents. In the absence of evidence to the contrary, I generally take the view that persons are acting in good faith when they provide this Office with information pursuant to a review. In this case, I have no reason whatsoever to doubt the veracity of the information provided by both the Contractor and the Council as to the nature and purpose of the file sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant’s request for a specific environmental file under section 15(1)(a) of the FOI Act on the ground that the Council does not hold the file.

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