Whether TII was justified in refusing, under section 15(1)(a) of the FOI Act, access to further records relating to a meeting with Limerick City and County Council in 2019 on the grounds that no further records exist or can be found

25 January 2023

Background

In a request dated 26 May 2022, the applicant sought access to all records relating to a meeting that took place between TII officials and members of Limerick City & County Council (the Council) on 1 October 2019. The applicant said that the meeting concerned a proposed roundabout development at O-�Rourke-�s Cross, Limerick. In a decision dated 23 June 2022, TII part-granted the request. It identified seven records of which it released four in full and three in part, with certain information redacted under section 37(1). On 20 July 2022, the applicant sought an internal review of this decision. He said that the minutes provided to him of the meeting were in draft only and that he wished to receive a copy of the final version. He also asked that the information refused under section 37(1) be released. On 5 August 2022, TII affirmed its decision, saying that it was satisfied that comprehensive searches had been carried out and that all relevant records had been identified and released to him. It said that the information redacted from records 4, 5 and 6 was personal information.

On 25 October 2022, the applicant applied to this Office for a review of TII-�s decision. In the course of the review, TII released the three records that had been part-granted, with the redactions made under section 37(1) removed.

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 TII and by the applicant, the correspondence between the parties and with this Office, and the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant maintains that additional records relevant to his FOI request should exist and should have been released to him, while TII-�s position is that it has released all relevant records. This is effectively a refusal to grant access to any further records under section 15(1)(a) of the FOI Act.

This review is therefore concerned with whether TII was justified, under section 15(1)(a), in refusing access to any additional records relevant to the applicant-�s request.

Analysis and Findings

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the 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.

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. 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.

TII provided this Office with a description of the searches it undertook to locate records relevant to the applicant-�s request, details of which were provided to the applicant during the review. Therefore, while I do not propose to repeat the details in full here, I can confirm that I have had regard to those details in full. In summary, TII said that the meeting in question was what they call a -�delegation meeting-�, a meeting which provides local authorities with an opportunity to discuss national road issues within their respective county with TII officials. It said that its record keeping practice at the time was to take an informal note of such meetings and that the meetings notes released to the applicant (record 7) were marked as -�Draft-� because they were not official meeting minutes, and not because there was a later or more final version available.

TII described its record management system for records relating to delegation meetings, including a spreadsheet it maintains for recording requests from local authorities which are then given a reference number that is used on its Electronic Document Management System (EDMS). In addition to carrying out searches using the relevant reference number, TII said that it also searched the EDMS for O-�Rourke-�s Cross, Bruree, Co Limerick, and located two additional records (records 5 and 6) which were released to the applicant. These records contain correspondence from a member of the Council to the TII raising the issue of O-�Rourke-�s Cross, with a response from TII saying that O-�Rourke-�s Cross was not on the agenda for the planned delegation meeting. TII said that as part of the internal review process on the applicant-�s FOI request, it consulted two named members of TII staff, both of whom attended the meeting in question and said that they had no recollection of O-�Rourke-�s Cross being discussed at the meeting.

Having carefully considered TII-�s submissions, it seems to me that reasonable steps have been taken to search for records relevant to the applicant-�s FOI request. From an examination of the records themselves, I am satisfied that the information contained within them corroborates TII-�s position as regards O-�Rourke-�s Cross, i.e. that it was not discussed at the meeting in question. While the applicant was of the view that the meeting minutes being marked -�Draft-� suggested that further minutes must be held, I accept TII-�s explanation in this regard. In these circumstances, I am satisfied that TII was justified, under section 15(1)(a), in refusing access to any further records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TII-�s decision to refuse, under section 15(1)(a) of the FOI Act, access to further records relevant to the applicant-�s request on the grounds that no further 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Emer Butler
Investigator