Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant-�s request on the ground that no further relevant records exist or can be found

9 November 2022

Background

In a request dated 17 November 2021, the applicant sought access to:

-�all correspondence obtainable in relation to preparation for, works on and ongoing upkeep of the elevated section of the public footpath on the L4082 road in Coolbunnia, Cheekpoint, County Waterford, from 2018 until present, inclusive of road surveys and road works etc carried out.-�

In a decision dated 16 December 2021, the Council said it had decided to grant the applicant-�s request in full and it attached a record which it described as a report prepared by a consultant -�on foot of a road traffic accident, recommending the construction of the high footpath-�. On 13 January 2022, the applicant sought an internal review of the Council-�s decision. He said he referred to the elevated section of the footpath merely to define the specific area he was referring to and that he had sought records relating to works on the area since 2018, prior to, during, and after the elevation of the footpath. He said that in the interests of clarity, he was writing his request again, which was for -�all information on this stretch of footpath since 2018, relating to the footpath -� which is now related (sic) to as the -�elevated-� section-�.

In its internal review decision of 12 April 2022, the Council said the review process included a further search of documents relating to the footpath in question. It said information relating to the original tendering for installation of the high containment kerbs is publicly available. It said that prior to the vehicular accident at the location in 2020, there were no issues or concerns with the footpath. It released a number of email exchanges between a staff member of the Council and a developer in relation to accommodation works agreed along his boundary. It refused access to further records containing information in relation to third parties under section 37(1) of the Act.

On 12 May 2022, the applicant applied to this Office for a review of the Council-�s decision. He argued that further relevant records should exist.

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 correspondence between the applicant and the Council as outlined above, and to communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

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. The applicant believes that further records coming within the scope of his request, other than those already released, should have been released. Accordingly, 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 relevant records on the ground that no further records exist or can be found.

Analysis and Findings

The Applicant-�s Submissions

In essence, the applicant argued that all relevant records have not been located and released to him. He provided this Office with a copy of an email sent in 2019 by an Executive Engineer employed by the Council which stated as follows:

-�The construction of the lower road beneath the existing L4082 has stripped away the overburden and left a steep drop of from the edge of the footpath. There is a post and rail timber fence there but this is open and a child could easily slip in under the lower rail. I would query that there should be a Safety Barrier along the footpath edge-�

The applicant said he did not receive a copy of the email on foot of his request. He said as the email refers to the steep drop left at the edge of the footpath it therefore includes the footpath, which is affected by works beside it. He said he wanted all records relating to the issue outlined in the email. He said an engineering company responsible for designing a private development designed gabion baskets to place at the side of the elevated section of public footpath and that he received no records relating to that matter, apart from one set of drawings from the engineering company. He said he was looking for all information relating to a related excavation and surrounding the insertion of a safety railing, namely -�all correspondence from 2018 onwards regarding this section of footpath and road, with particular emphasis on issues relating to reasons for gabion baskets and high footpath installation, resurfacing of both sections of road, safety issues and to the effects of excavation to the overburden below it.-�

The Council-�s Response

The Council explained that following a road traffic accident in 2020 at Coolbunnia on the L4082, an engineering company was engaged by the Council to look at solutions to the problem for this section of road. The consultant-�s report recommended placing a high containment kerb at this location due to the restricted space available on the verge. This work at the road edge was completed in 2021 by widening the footpath in order to provide a minimum 2-metre-wide footpath. The Council said in order to widen the footpath to two metres, the Council had to encroach onto the property of a named developer. It said an agreement was negotiated between the Executive Engineer and the developer in person.

The Council said the email identified as missing by the applicant related to the boundary ditch inside the footpath which had been removed by the developer. It said the developer was quite entitled to remove this ditch as it was his boundary, but it resulted in an exposed edge with a drop off into his property. It said the issue did not relate to the footpath and had no impact on the footpath when it was removed. It said the main concern the Executive Engineer had at the time, which he communicated in the email, was that a child could easily get through the timber post and rail fence on the boundary and could fall over the edge. Until the ditch was removed there was very little risk of this happening despite the fact the steep incline was always present. The Council said temporary fencing needed to be put in place until a permanent fence was erected as there was concern for the safety of pedestrians using the footpath. It said there is no mention of any damage or concern about the footpath and that the primary concern directly related to the treatment of the inside edge of the footpath i.e. the boundary fence. It said the Executive Engineer did not consider this email relevant to the FOI request which related to the stability of the footpath, as it did not impact on the integrity of the footpath itself. Therefore, the record was not released to the applicant. It said the developer in this case is entitled to privacy on this matter as it was directly between him and the Council to agree a resolution.

The Council contended the applicant has been aware of the engineering company-�s involvement with the design of the gabion baskets since 2021. It said this design work was tendered by the Executive Engineer as this expertise was not available in-house within the Council. It said there is a limited number of consultant engineering companies that it can call on locally to carry out this type of work and that it is not unusual for consultants to carry out other private works in the same area.

Following receipt of the Council-�s submissions, the Investigating Officer queried whether further records exist in relation to any action(s) taken by the Council on foot of the issues highlighted in the email from 2019. In response, the Council said it holds other records concerning the boundary fence and the developer. It said these records relate solely to the boundary treatment and not to the condition or otherwise of the footpath and road, and are not relevant to the applicant-�s request.

The Investigating Officer also queried (i) whetherthe engineering company carried out a service on its behalf, and (ii) if so, had theCouncil considered whether the company might hold any relevant records falling within scope of the request in accordance with section 11(9) of the Act.Section 11(9) 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 the FOI Act to be held by the FOI body. Section 2 defines -�Service Provider-� as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.-� In other words, any records held by a service provider that relate to the service provided are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt.

In response, the Council said the engineering company was engaged by the Council to provide a design for the gabion baskets to allow the footpath to be widened to 2 metres. It said they were also asked to be PSDP (Project Supervisor Design Stage) for this work. It said there was minimal engagement by e-mail with the engineering company apart from quotations for the work and a design and appointment to carry out the work. It said all other communication was carried out on site. It said there were no other records which the engineering company could have had and therefore it was not considered.

My Analysis

As I outlined above, the applicant clarified in his application for internal review that he sought records since 2018 relating to the footpath prior to, during and after the elevation of the footpath. He expressed the view at that stage of the decision making process that there was some confusion on the part of the Council in relation to his request. Indeed, having considered the submissions of both parties, they appear to hold conflicting views as to the scope of the applicant-�s request. On one hand, the applicant identified further records which he believes should exist and argued the missing email falls within the scope of his request, which included a request for -�road surveys and road works etc. carried out-�. On the other hand, the Council suggested the records identified by the applicant fall outside the scope of the request and argued the email from 2019 was not relevant to the applicant-�s request, as it relates to the boundary ditch inside the footpath.

At this stage, I think it is worth considering the obligations of both requesters and public bodies under the FOI Act in cases such as this. Section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, while section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests.

It seems to me that requests that seek access to -�all correspondence relating to-� a particular matter or subject invariably run the risk of giving rise to disputes in relation to the scope of such requests. However, if an FOI body considers that the wording of a request is unclear or ambiguous, it should consider engaging with the requester to clarify the precise scope of the request.

Given the exchanges between the parties during the processing of the request, it is unfortunate that the parties did not engage more fully in order to better understand the extent of the records that were of interest to the applicant. Nevertheless, it seems to me that the Council took an unduly narrow interpretation of the request. While it interpreted the request as one for records relating to work on the footpath only, it is worth restating that the applicant specified in his request that he was seeking -�all correspondence -�inclusive of road surveys and road works etc. carried out.-� (my emphasis).

As I have outlined above, the Council confirmed that certain other records exist which may well, in my view, fall within the scope of the applicant-�s request. However, I do not consider it appropriate to simply direct the release of such records, given the uncertainty surrounding the scope of the request. In the circumstances, I consider that the most appropriate course of action to take is to annul the Council-�s decision, the effect of which is that the Council must consider the applicant-�s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council-�s decision.

I should add that in light of my comments above about the scope of the request, I strongly recommend that both parties engage further in the first instance to ensure that the precise scope of the request is agreed.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access, under section 15(1)(a) of the Act, to any further records coming within the scope of the applicant-�s request and I direct the Council to undertake a fresh decision making process in respect of the request.

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