Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to the invoice for tree planters and planters' boxes located in Parnell Street, in Limerick City Centre on the ground that the record sought does not exist

1 March 2022

Background

On 7 October 2021, the applicant made a request to the Council for information, including costs, about planter boxes situated on Parnell Street in Limerick City Centre. On 28 October 2021, following an exchange of emails between the applicant and the Council, the applicant amended his request to seek a copy of the invoice for the planter boxes and tree planters installed as outlined in his original email.

In a decision dated 24 November 2021, the Council refused the request under section 15(1)(a) of the Act. It said there was no specific invoice on file for the planter boxes and tree planters. It said the costs were incorporated into a larger invoice paid to a named company and there is no breakdown of costs on the invoice. It said a breakdown is provided on the draft final account which is yet to be agreed and that the figure provided, details of which it released to the applicant, includes planter and trees in Parnell Street and Wickham Street. It said the figure isn't broken down into each street. It said the figure provided is not yet certified and agreed in the final account figures.

On 25 November 2021, the applicant sought an internal review of the Council's decision. He said he was hoping to get a clearer picture of the true cost or if the figure provided included or excluded VAT.  On 15 December 2021, while the Council affirmed its refusal of the request under section 15(10(a), it confirmed that the figure excluded VAT. On 24 January 2022, the applicant applied to this Office for a review of the Council's decision.

During the course of the review, the Investigating Officer sought submissions from the Council on the searches undertaken to locate the relevant records and a summary of those submissions were provided to the applicant. In response, the applicant explained why he wanted information about the street upgrade project and requested further information about the project.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Council and the applicant's comments in his application for review and in reply to the submissions made by the Council in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 15(1)(a) of the Act, in refusing access to the invoice for the tree planters and planter boxes located in Parnell Street in Limerick City Centre on the ground that no record exists containing the information sought.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in a case 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 generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no relevant records exist. While I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submission to this Office, the Council said the planter boxes and trees and bedding plants were installed on Parnell Street as part of -�Parnell Street and Wickham Street Urban Realm Works-�. It said the request was forwarded to its Design & Delivery Services Department which was responsible for overseeing the project. The Department explained that the only record containing relevant information was the yet to be agreed draft final account and that the record does not separate the cost between the two streets. It said costs for the works were received from the consultants on the project and were described in a bill of quantities.

The Council added that it consulted the consultant engineer for the project, who said there was a budget for trees/planters in the bill of quantities but that the actual costs of the works may have differed from the original budget cost if there were changes to the scope of work/specification during the course of the project. It said it is awaiting confirmation of final account figures.

The Council further added that the Project Quantity Surveyor carries out an assessment of work carried out on a monthly basis. The valuation amount is included in an interim certificate issued by the employers' representatives to the client for payment. A -�retention-� amount is withheld from the overall certificate valuation. Half of the retention amount is released on the date of Substantial Completion with the remainder issued at the end of the Defects Liability Period if all defects have been addressed. The valuation process is carried out by professionals with suitable qualifications to carry out such work. The retention of an amount to cover any defects is a safeguard for clients in buildings and civil engineering contracts.

As I have indicated above, the Investigating Officer provided the applicant with details of the Councils' submission. In response, while the applicant sought further information relating to the street upgrade project and explained why we was looking for the information, he offered no evidence to suggest that a record containing the details sought in his request exist.

It is important to state that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, it is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have.

The question I must consider is whether the Council was justified in deciding that an invoice for the planter boxes and tree planters on Parnell Street does not exist. Having regard to the Council's explanation of the circumstances surrounding the procurement of the relevant items and of its process for settling the account, I am satisfied that it was. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant's request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse access, under section 15(1)(a) of the Act, to the invoice for tree planters and planters' boxes located in Parnell Street in Limerick City Centre on the basis that the record sought does not exist.

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