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Mr E and Fingal County Council (FOI Act 2014)

Case Number: 170061

Whether the Council was justified in refusing the applicant's request for records relating to planning permission for specified areas, other than those already released, on the grounds that all other relevant records are in the public domain

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 27 October 2016 the applicant requested access to a full copy of planning permission sought, obtained and granted (including all drawings) for "all the T.3 areas, Gazelle and Ballentree" Tyrrelstown, Dublin 15 to include any revision consented to.

On 22 November 2016, the Council informed the applicant that all documents relating to planning applications are available either on its website or for viewing at its public counters. It asked him to specify in more detail what he was seeking if he required records that are not part of a planning file. In response, the applicant referred to a planning permission that was granted for the Ballintree and Gazelle areas of Tyrrelstown that was subject to 42 conditions. He stated that the "conditions would be agreed to by both parties [council and developer] before development started, by way of satisfying the planning conditions documentation with maps would be submitted, agreed and permissions granted". He stated that his original request covers "all documentation [agreed and granted only] whether in the public arena or not". He stated that he had yet to see any documentation that was agreed by both parties and granted with maps attached to outline the development.

On 29 December 2016, the Council decided to part-grant the request, which it describes as all documents "concerning all aspects of development at Tyrrelstown, Dublin 15 under Planning Registry Reference Number F99A/1620". It refused access to a number of records under section 15(1)(d) of the FOI Act on the ground that they are publicly available.

The applicant sought an internal review of that decision on 4 January 2017. In his request for internal review he stated that his request covered "any documentation submitted (not proposals) in which would satisfy each of 42 conditions in which was granted on the 23rd December 1999, also any revisions/changes to the estate in particularly the Gazelle and Ballentree areas this would also include house types, landscape maps etc.".

On 30 January 2017, the Council varied its decision, releasing eight further documents. On 7 February, the applicant sought a review by this Office of that decision. In his application for review, he contended that had not received any paperwork indicating that any of the 42 conditions attached to a particular permission were agreed and signed off, nor any amendments or changes to the original planning for the areas at issue, other than proposals.

In conducting this review I have had regard to communications between the applicant and the Council as outlined above and to the correspondence between this Office and both the applicant and the Council in relation to this review.

During the course of this review, the Council identified a number of records that it considered might pertain to the applicant's request. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse the applicant's request for records relating to planning permission for the Gazelle and Ballentree areas of Tyrrelstown other than those already released, on the basis that all additional relevant records are in the public domain.

Analysis and Findings

It seems to me that some confusion exists as to the precise nature and extent of the records sought by the applicant in this case. While I find the wording of the applicant's request to be somewhat vague, I am also of the view that the Council did not sufficiently clarify the precise nature of the request before proceeding to consider it. As I have outlined above, the Council initially sought clarification of the precise nature of the records sought and, having considered the applicant's response, it considered the request as one for records relating to planning reference F99A/1620. I am unclear as to why the Council interpreted the request in this manner.

In a submission to this Office, the Council provided some background information on the planning history of the area in question. It stated that planning permission F99A/1620 granted a ten year permission for the construction of over 2,000 dwellings and associated development works with 42 conditions. Of these 42 conditions, 19 required compliances. It stated that while compliance documentation was submitted for a number of conditions, there is no record of any compliance being agreed. It stated, however, that subsequent applications in the early 2000s were made which effectively modified the original permission and also required compliances.

The Council stated that that the search initially undertaken focused on the original parent planning application F99A/1620 for Tyrrelstown and that the subsequent applications did not form part of the initial search. It acknowledged that there are a number of other subsequent files that may, to varying degrees, be relevant to the request. It further stated that these records were not available to the public on the Council's website as they were pre-2005 but that it has no wish and does not withhold information that should be publicly available. It stated that the files in question have been, or are in the process of being, retrieved from its archive and will be available to the applicant or any other member of the public. It suggested that a senior member of the planning authority would be prepared to meet with the applicant to review subsequent application files pertaining to the area in question.

It seems to me that it is not possible for this Office to determine whether the Council validly refused all relevant records coming within the scope of the applicant's request on the ground that they are publicly available, as it clearly failed to precisely identify the extent of the records coming within the scope of that request. However, given the lack of clarity as to the extent of the request, I do not consider it appropriate to direct the Council to release all relevant records. As outlined above, the development in question has a long and complex planning history. Furthermore, I am cognisant of the fact that the Act does not require public bodies to release records that are otherwise publicly available. Section 15(1)(d) allows a body to refuse a request where the information sought is already in the public domain while section 15(2) allows a body to refuse a request where the record sought is available for public inspection, whether upon payment or free of charge.

Accordingly, I consider that the appropriate course of action in this case is to annul the Council's decision and direct it to undertake a fresh decision-making process in respect of the applicant's request.

For the benefit of both parties, I would draw attention to section 12(1) of the FOI Act which requires that a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, and to the corresponding obligation on the Council, under section 11(2), to give reasonable assistance to persons making requests for records. It seems to me therefore, that it would be beneficial for both parties to agree on the precise nature and scope of the request in the first instance, to avoid any further confusion.

I also note that the Council has indicated that examining the files in question would have cost implications and the work involved in fully responding to the request would be burdensome. While it is open to public bodies to refuse voluminous requests under section 15(1)(c), this is subject to the requirement, under section 15(4) that they assist, or offer to assist, the requester in refining the request before doing so. In any event, consideration of this provision may not be necessary if the Council is readily able to identify the records sought as being publicly available and/or if the parties can agree on the precise nature and scope of the request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council. I direct the Council to conduct a new decision-making process on 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.


Stephen Rafferty
Senior Investigator