Whether the Council was justified in refusing access to records relating to a report created by a named Independent Reviewer

3 July 2023

Background

In December 2018, an independent review was carried out concerning planning and governance issues arising in relation to the development of a site in Carlow. I understand that the applicant in this case is acting on behalf of a third party objector to the development concerned. In a request dated 1 December 2022, the applicant sought access to various records relating to the independent reviewer-�s report. He referred to references in the report to meetings between auditors and Council officials in 2010 and 2011, and sought copies of the auditor-�s working notes, as well as the following:

• A copy of all the Local Government Auditor (LGA)-�s records from Carlow Town or County Council files to support the Independent Reviewer-�s report, and the -�current location of these public records-�.
• A copy of the LGA-�s -�documented advice-� and other records held by Carlow Town or County Council relating to how a shortfall identified by the LGA occurred.
• Records relating to -�any details or discussions of the recorded loss-� referred to in the report.
• A copy from Carlow Town or County Council files of the -�working notes-�, or other records, made and/or submitted by the LGA, or by the Manager, in relation to the -�recovery, rectification or replacement of the established loss-�, including legal advice sought or received.

The Council acknowledged receipt of the applicant-�s request on 2 December 2022. On 20 December 2022, it informed the applicant that it intended to extend the time in which it was required to make a decision on his request under section 14 of the FOI Act. I note that while the Council cited the provisions of section 14, that it did not explain which subsection it was relying on in this case. In any event, it informed the applicant that he should receive a decision on his request by 3 February 2023. The applicant indicated that he accepted the extension of the deadline.

On 2 February 2023, the Interim Chief Executive of the Council wrote to the applicant. He referred to previous correspondence dated 21 November 2022 from the Council to the applicant, relating to the subject matter of the FOI request and to the independent review. I understand that the letter of 21 November 2022 set out an offer of -�a Solatium-� (which I understand to be compensation) from the Council and a proposed agreement form to be completed by the third party concerned. The Interim Chief Executive essentially stated that as no response had been received by the deadline of 30 November 2022 to the proposals set out in the letter, the Council had proceeded as previously indicated. That is, it had closed its file on the matter and it would not be engaging in any further correspondence including handing related FOI requests. 

The applicant made an internal review request on 22 February 2023 on the basis that he considered that the Council had refused his request. On 30 March 2023, the Council informed the applicant that its Senior Executive Officer had -�applied to be recused from this appeal and [his] application [was] approved by Chief Executive Order-�. It said that another member of staff had been appointed as the FOI Appeals Officer in this case. The decision maker attached a copy of the letter dated 2 February 2023, the contents of which she said were -�self-explanatory-�. She stated that having regard to the previous letter, she was not therefore, -�in a position to consider [his] appeal-�.

On 24 April 2023, the applicant applied to this Office for a review of the Council-�s decision.

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 described above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Council was justified in its deemed refusal of the applicant-�s request for access to various records under the provisions of the FOI Act.

Preliminary Matters

In his correspondence with this Office, the applicant expressed a number of concerns about the Council-�s decisions and actions in relation to the subject matter of the independent review, as well as the contents of the independent review itself.

It is important to note that 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. The remit of this Office is solely concerned with a review of the decision taken by the FOI body on the FOI request.

Analysis and Findings

The Council's handling of the applicant-�s request in this case fell short of the standards I would expect of a body that has been subject to the FOI Act for many years.

The Council-�s submissions

As noted above, the Council informed the applicant by letter in response to his original and internal review requests that it would not be responding to any further correspondence including FOI requests.

In its submissions to this Office, the Council said that it was of the view that it was in order to have acted in this way, having regard to the lack of response to the Interim Chief Executive-�s letter of 21 November 2022. Its position is that it was not required to deal with the applicant-�s request under the FOI Act.

The Council indicated that, if the request fell to be dealt with under the FOI Act, it may be refused under section 15(1)(g) of the FOI Act, which deals with manifestly unreasonable requests from the same requester. It noted that in a previous review conducted by this Office (OIC Case No. 150393, available on our website atwww.oic.ierefers) on foot of an application for review from the same applicant, the Council-�s decision to refuse that request under section 15(1)(g) was affirmed by the Senior Investigator. The Council was of the view that the same or similar circumstances applied in the present case.

Requirements under the FOI Act for processing FOI requests

Section 13 of the FOI Act sets out the process and requirements for decisions on FOI requests and notification of decisions. Section 13(2) notes that any notice of decision made under section 13(1) shall specify, amongst other things, the reasons for the refusal if the request is refused and any provision of the FOI Act pursuant to which the request is refused.

As set out above, the Council did not rely on any provision of the FOI Act in its refusal of the applicant-�s request in either its original decision or internal review decision. Indeed, apart from acknowledging the request, and seeking to extend the time to make an original decision under section 14, it appears to have had no regard whatsoever to the requirements of the FOI Act in processing the request. Furthermore, in its responses to the applicant-�s original and internal review requests, it clearly stated that it was refusing to process his FOI request on the basis that a separate matter (the agreement) had not been responded to or concluded, and that its file was therefore closed.

It is clear to me that it is not the case that the Council was unaware of its obligations under the FOI Act. I note, for example, that the acknowledgement which the Council issued upon receipt of the original request contained accurate details in relation to the time-frame within which a decision was required. I am also aware that it has been subject to FOI since 1998.

I understand that the applicant-�s engagement with the Council relating to the development in question has taken place over a number of years. I accept that the Council previously refused a number of his FOI requests on the basis that they formed part of a pattern of manifestly unreasonable requests. I also note that the Council appeared to have been trying to bring the substantive matters to a conclusion in November 2022. However, none of this relieves it of its obligations under the FOI Act. The administration of FOI is one of the Council-�s statutory functions which should be afforded as much weight as any other statutory function.

While the Council has indicated to this Office that if the applicant-�s request were to be dealt with under the FOI Act, then it might rely on section 15(1)(g) to refuse his request, it has not provided any detailed submissions in this regard. Furthermore, in circumstances where an FOI body has not processed an FOI request in line with its obligations under the FOI Act at original or internal review stage, I cannot find that its effective or deemed refusal of his request was justified.

I find, therefore, that the Council-�s refusal of the applicant-�s request was not justified under the FOI Act. I do not consider that it would be appropriate for this Office to act as a first instance decision maker on the matter. In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the Council-�s decision, the effect of which is that it 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council-�s decision. I direct it to conduct a fresh decision-making process in relation to the applicant-�s FOI 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.
 

Sandra Murdiff
Investigator