Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records containing information about the income it receives from a licence for a smart pole antenna at a particular location, on the basis that no further records exist or can be found

13 February 2024

Background

Local Authorities, in their capacity as planning authorities, are tasked with the issuing of licences for the placement of appliances, cables, signs, and/or other items on public roads under Section 254 of the Planning and Development Act 2000.

On 21 April 2023, the applicant made an FOI request to the Council asking if the Council is receiving an income for having a smart pole antenna support structure and cabinet, erected by a named company in September 2022, at a particular location in relation to a specific numbered Section 254 Licence application. On 18 May 2023, the Council issued a decision wherein it provided the applicant with details of the licence fee it received in respect of the site in question. While the Council did not release any records containing the information sought, it said it is in receipt of a licence fee of €125 per annum in respect of a 5-year licence for a smart street pole and operator cabinet on a public road. The Council said that the street pole and cabinet are erected on the road side of the applicant's field perimeter fence. On 11 June 2023, the applicant requested an internal review of the Council's decision on the basis that further information ought to exist. On 29 June 2023, the Council affirmed its original decision. On 4 July 2023, the applicant applied to this Office for review. He said that the company installed a mast on his lands without his permission and questioned the planning process in relation to the pole. He said he believes there is a yearly payment greater than the €125 licence fee. 

During the course of this review, the Council released records to the applicant that contain the information it had relied on in making its original decision. The Council said that no further relevant records exist. The applicant maintains that further records ought to exist, other than those released to him. This Office's Investigating Officer provided the applicant with details of the Council's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records relating to the applicant's request exist. On foot of the applicant's response, the Investigating Officer made further enquiries to the Council, details of which are outlined below.

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 outlined above, including the submissions made by both parties to this review. I have also had regard to the contents of the records released to the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant believes that additional records relating to his request exist which have not been released to him. As such, this review is solely concerned with whether the Council was justified in its decision to refuse, under section 15(1)(a) of the FOI Act, access to further records relating to income it received in relation to the specific smart pole.

Preliminary Matters                                                                        

Before I address the substantive issues arising in this case it is important to note 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.

It is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Finally, as noted above, in his application to this Office the applicant refers to matters concerning the planning permission granted in relation to the smart pole antenna at issue. I wish to explain to the applicant 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.

Analysis and Findings

Section 15(1)(a)

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 role of this Office 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/he 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 can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

As outlined above, the Council provided this Office with details of its reasons for concluding that no further records exist, other than those released during the course of the review, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submissions to this Office, The Council stated that the procedure in place regarding the type of license application referenced by the applicant was, upon receipt of the application, to assign a unique reference number based on chronological entry into the Section 254 Licence Database. It stated that all documentation that is received is scanned and saved to a dedicated electronic folder, which is titled with a unique reference number. It stated that documentation is also compiled into a hard copy file, which is titled with the same unique reference number. The Council stated that this includes the three records released to the applicant during the course of this review. It stated that in relation to the specific licence application file relevant to the applicant's request, two payments, totalling €625, were received by the Council. The Council stated that upon conclusion of a licence application, i.e. following the issuing of a licence or the refusal of the licence application, the contents of the hard copy file and the electronic documentation are checked to ensure that all content is replicated in both mediums. The Council said that the electronic file remains on the Planning Section shared drive, and the hard copy file is archived with all licence application files, in a purpose built roller shelving system within the planning office.

The Council said that the FOI Officer issued a response to the applicant's FOI request, stating that the Council is in receipt of a licence fee in respect of 5-year licensing for a smart street pole and operator cabinet on a public road. The Council said that the income to the Planning Authority is limited to the Statutory Licence Fee. The Council said that in responding to the applicant's request the only file which was relevant to the examination was the licence application referenced by the applicant in his request. The Council stated that the electronic and hard copy files for this licence application were examined and the three records were noted. It stated that the Section 254 Licence Database was also examined to ensure that there were no other licences relating to smart pole infrastructure in the relevant area referred to in the applicant's request. The Council said that it undertook key word searches using 'Smart Pole', the name of the location and the name of the company that installed the pole.

The Council said that the applicant's FOI request was discussed with all planning officials involved in the administration of the specific licence application and that it was verified by all planning officials that the fee payment details contained on the electronic and hard copy file was the full total of licence fee income from the development licenced under the specific licence application. It stated that Officers of the Planning Section did not contact the third party company as the records reflected that the statutorily required licence fee had been paid. It stated that there was no record in the Planning Section of the third party company making or attempting to make any other payment in relation to the specific licence application.

In submissions to this Office, the applicant questioned why the Council's searches were limited to the Planning Section and asked if the "Assets" section of the Council had any engagement with the company that erected the smart pole. In response to additional queries from this Office, the Council said that searches were carried out in the Assets Section of the Council for records relevant to the applicant's request and no records were found in this section relating to his request. It stated that no records relating to the applicant's request are held in any section of the Council other than the Planning Section. The Council said that no records exist of the Council having any engagement with the third party outside the Section 254 process regarding records relevant to the applicant's request.

As outlined above, the Council initially provided the applicant with the information contained in the three records it identified as being relevant to the applicant's request, but did not release the records to the applicant. In its submissions to this Office, the Council said that the applicant had not made a request for records, but rather a request for information, and as such it considered the records it identified as containing the information sought by the applicant were outside the scope of the applicant's request. However, during the course of this review the Council released a copy of two receipts totalling €625 and an acknowledgement letter which it had issued to the company who paid the licence fee. The Council said the license fee for the overall term of the license is required to be paid prior to the issuing of a license. It explained it received two payments of €125 and €500 in June 2019 and that this was the full total of the licence fee income derived from the development licence at issue.

As noted above, 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. I acknowledge there may be times where it is practical to simply provide a requester with an answer to the information sought, where the requester is happy to receive the information in this form. However, the FOI Act requires bodies to make a decision on access to records containing the information sought. While I note the Council did not initially release a copy of the relevant records to the applicant as it deemed his FOI request did not seek a copy of such records, it subsequently released the records at issue during the course of this review.

It is important to note that where and FOI body refuses a request for records under section 15(1)(a) of the FOI Act, the question I must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of the relevant records. This Office does not generally expect FOI bodies to carry out extensive or indefinite searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found. We take the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found.

Having regard to the Council's submissions about its record management practices in relation to Section 254 licence applications and to its efforts to locate the records at issue in this case, and in the absence of any evidence to suggest otherwise, I am satisfied that the Council has undertaken all reasonable steps to locate the records sought by the applicant. I find that the Council was justified in refusing access to further records relating to the applicant's request under section 15(1)(a) of the FOI Act on the ground that no further 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) of the FOI Act, I hereby affirm the Council's decision to refuse access to further relevant records in this case on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

Richard Crowley
Investigator