Whether the Council was justified, under section 15(1)(a) of the Act, in refusing to release further records relating to a specific road which was developed as part of a Local Improvement Scheme on the ground that no further records apart from those already released could be found having taken all reasonable steps to ascertain their whereabouts

17 February 2021

Background

The Local Improvement Scheme (LIS) is a programme funded by the Department of Rural and Community Development. The LIS provides funding to help local authorities carry out improvement works on private and non-publicly maintained roads. Those making a LIS application generally contribute to the cost of the improvement works. In this case, a LIS application was made in 2007 to develop a specific road near the applicant’s property. The applicant was not the landowner at the time of the works. It appears he is in dispute with the Council regarding a number of issues with the road.

In a request dated 20 July 2020, the applicant, through his solicitors, requested “All documents, drawings, notes, letters, agreements, to include memos and minutes of any meetings pertaining to the road marked A-B on the attached map. This should also include all information and details regarding a previous LIS, Local Improvement Scheme, for the road together with all documents and drawings relating to the widening of the junction onto” a specified road.  All references to communications with the applicant in this case should be taken to include references to communications with his solicitors.

On 17 August 2020, the Council issued a decision on the request in which it said it had decided to grant the request. It released two records that post-dated the request. One of the records contained a brief extract from the LIS Register. The released records indicated that the LIS was completed in 2007 and that all records regarding the scheme were disposed of as part of the Council’s GDPR obligations.

On 15 September 2020, the applicant sought an internal review of that decision. On 5 October 2020, the Council affirmed its original decision. On 26 November 2020, the applicant sought a review by this Office of the Council’s decision. He raised concerns about the appropriateness of the LIS application and he indicated that he was seeking the names of the individuals who made a contribution to the development of the road and the names of the engineers who signed off on the LIS application.

During the course of the review, the investigating officer sought submissions from the Council on the searches carried out to locate relevant records. She subsequently provided the applicant with the details of the searches carried out by the Council and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that the Council was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. The applicant responded on 18 January 2021 indicating he believed that further records exist. He provided this Office with a copy of correspondence he received from Irish Water and the Council in 2018 regarding maintenance works on the road that refers to the fact that the road was surfaced under a previous LIS.

In subsequent correspondence with this Office, the applicant confirmed that he was seeking access to the original LIS application and any records that named the individuals who made a contribution to the LIS only. He confirmed he was not seeking subsequent correspondence between him and the Council regarding the dispute over maintaining the road.

In the circumstances, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the LIS application to develop the specified road and any records that named the individuals who made a contribution to the LIS on the ground that no further relevant records exist or can be found.

Preliminary Matter

As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of the review, the Council provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council said the LIS application was made on 1 December 2007 and subsequently marked complete. It said that the file was held by the Roads Office located at the Council’s Office in Claremorris. It said that records held were destroyed in accordance with GDPR requirements and the Council’s Data Retention Policy. It said the only record retained was the entry on the LIS Register, an extract of which was incorporated into a memorandum dated 29 July 2020 and released to the applicant.

The Council said that the FOI Unit consulted the Roads Office to confirm that the records were destroyed. The Roads Office consulted with relevant staff members who confirmed that records were destroyed. It provided a copy of the Waste Management Certificate of Document and Data Destruction which relate to a large quantity of records destroyed prior to the enactment of the GDPR Act.

In submissions to this Office, the applicant maintained that the Council should have a copy of the LIS application on file. He queried how the Council could have identified the relevant individuals to contact when carrying out watermain works in 2018. He provided a copy of the correspondence from the Council’s engineer which made reference to the LIS and the fact that contributions would have been made in 2007/2008. In response, the Council said that during the 2018 watermain works, relevant landowners who would be impacted by the pipeline were identified through a Land Registry search. It explained that the watermain works occurred a significant period of time after the LIS was completed and were not part of the LIS.

It is, in essence, the Council’s position that no further relevant records can be found or do not exist. It is important to note that the FOI Act is concerned with access to records held by pubic bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

It is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Council was justified in refusing access to further records apart from those already released on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Council to refuse access, under 15(1)(a) of the FOI Act, to any further records other than those already released on the ground that no further relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator