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Mr Q and An Bord Pleanála (FOI Act 2014)

Case Number: 150367

Whether the Board was justified in refusing to release additional records relating to a decision taken on a specific planning appeal

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

This review has its origins in an appeal made by the applicant to the Board in relation to a planning permission granted by Cork County Council for the construction of an extension to the rear of a neighbouring property. The applicant objected to the proposed development on a number of grounds, including that the development would result in a hostile environment for the applicant and his son who has particular special needs. The Board's Planning Inspector recommended that permission be refused on the ground that the proposed development would be contrary to the proper planning and sustainable development of the area. Having considered the relevant submissions and the Inspector's report, the Board decided to grant permission on 11 August 2014.

On 2 March 2015, the applicant made a request to the Board for a copy of "the minutes of the deciding meeting which granted permission" as he wished to ascertain if his son's medical condition and related issues were fully investigated by the Board before permission was granted. On 16 March 2015, a local Councillor submitted a second request to the Board "on behalf of and at the request of" the applicant and his wife. While the Councillor stated that her request was made under section 10 of the FOI Act, which is concerned with the right of persons to reasons for decisions affecting them, she proceeded to seek records of the extent to which the needs of the applicant's son were considered in the Board's decision and any other records which explain the reason for the decision.

The Board dealt with both requests together, given their subject matter, and on 2 April 2015, it decided to grant the request. In doing so, it released one record to the applicant, namely a copy of the minutes of the relevant meeting of the Board. It provided details of the Board members in attendance and it further stated that any records considered during the course of the appeal are affixed to the Board's file which is made available in its entirety for public inspection under the relevant planning legislation.

Further exchanges of correspondence between the applicant and the Board followed. On 14 July 2015, the Board clarified that it took into account the submissions made by all of the parties to the appeal, together with the report of its Inspector. On 9 September 2015, the applicant sought an internal review of the Board's decision. On 29 September 2015, the Board affirmed its original decision and relied on section 15(1)(a) of the FOI Act to refuse access to any further relevant records on the basis that no such records exist or can be found. On 27 October 2015, the applicant sought a review by this Office of the Board's decision.

I note that during the course of the review Ms Sandra Murdiff of this Office informed the applicant during a telephone call of her view that the Board was justified in its decision to refuse access to further records under section 15(1)(a) of the Act. I note that the applicant did not agree with her view. Consequently, I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the Board's appeal file, a copy of which was forwarded to this Office for the purpose of the review, to the contents of the record released, to the correspondence between the applicant and the Board and to the correspondence between this Office and both the applicant and the Board.

Scope of Review

This review is concerned with whether the Board was justified in refusing to release further records relating to the consideration it gave to the needs of the applicant's son in its consideration of the relevant planning appeal on the ground that no such records exist.

Analysis and Findings

Section 10
As I have outlined above, while the Councillor's request on behalf of the applicant indicated that the request was being made under section 10 of the FOI Act, she proceeded to seek access to specific records, and the Board processed the request as a request for access to records. Section 10 provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.

Section 10 of the Act further provides as follows:

"(10) An application under this section shall be expressed to be such an application.

(11) Notwithstanding subsection (10), where an FOI body receives either --

(a) an application which purports to be an application under this section but which is not in the proper form, or
(b) an application which does not purport to be an application under this section but which applies for the information access to which can be obtained only by way of an application under this section,

the head shall assist, or offer to assist, the individual in the preparation of an application under this section."

In my view, while the Councillor's request was clearly described as a request under section 10, the request itself was not in the proper form as it did not clearly identify the specific act for which a statement of reasons was sought, nor did it specifically request such a statement. However, it is quite clear, in my view, that the applicant is essentially seeking to ascertain what regard, if any, the Board had to the submissions made in relation to his son's medical condition in its consideration of the appeal, notwithstanding the fact that both requests sought access to records. In other words, he wants to know why the Board granted permission, regardless of the relevant medical information provided in support of his objections.

I note that Ms Murdiff drew the Board's attention to section 10(11) of the FOI Act during the course of the review and asked the Board if it had considered the Councillor's request (which it had subsumed into the applicant's original request) in terms of section 10, and whether it had offered to assist the Councillor in this regard. She also asked if it was willing to issue a statement of reasons to the applicant at that stage.

In its submission of 2 February 2016, the Board stated that the Board Direction and a copy of the Board Order, which are publicly available appeal records, both state the "Reasons and Considerations" for the Board's decision, including a statement of the reasons for not accepting the Inspector's recommendation in the planning appeal. It further stated that the Planning Acts impose clear requirements on the Board in relation to the necessity to give reasons for its decisions, including the reason(s) for not accepting the recommendation of its Inspector and that it is satisfied it has met these requirements in this case and that the reasons already given are full and complete.

While this Office has no role in determining whether the Board has met the requirements of the Planning Acts when giving reasons for its decisions on appeals, it does, indeed, have a role in determining the adequacy of statements provided under the FOI Act. While the Act requires FOI bodies to provide reasons for decisions, it also requires the provision of a statement of any findings on any material issues of fact made for the purposes of that act. The fact that available records may not contain all relevant findings on material issues of fact made for the purposes of a specific act does not relieve the Board of its obligations under the FOI Act. This Office considers that a statement of reasons should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act.

In my view, the Board has not dealt with the request submitted by the Councillor on behalf of the applicant in accordance with the provisions of section 10(11) of the FOI Act. Therefore, I direct the Board to assist the applicant to make a proper application for a statement of reasons under section 10 and to process it as required by the FOI Act.

Section 15
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.

It is the Board's position in this case that no relevant records other than the record released and the remaining records held on the publicly available file exist. I note that the applicant is of the view that any such meeting of the Board would encompass lengthy discussions which would be recorded in the minutes of the meeting. The Board has explained to this Office that the three members of the Board who made the decision in this case acted in line with the Board's procedures and their decision was recorded on the record released to the applicant in response to his FOI request. The record in question is a one page template document which refers solely to the particular appeal at issue. It records who was in attendance, the date and the Board's decision to grant permission. The applicant has argued that this document could not possibly reflect the process accurately and questioned the Board's procedures in this regard. The Board has stated that all of the submissions on file and the Inspector's report were fully considered before a decision was made and that considerations of this type are not recorded in minutes as it would, say, in a company's Board meeting or a meeting of a committee.

The Board stated that all records relating to this matter are filed on the appeal file, as is its standard procedure. It also stated that it asked all staff who had been involved with the case at any point to search for any other relevant records and none had been located. While I can understand the applicant's frustration with the lack of detail contained within the Board minutes given his particular circumstances, this Office has no role in examining the Board's processes for recording details of its Board meetings. As no evidence has been presented to me to suggest otherwise, I accept the Board's explanation of its procedures relating to appeals in respect of the creation and nature of records held. I find, therefore, that the Board's decision to refuse the applicant's request for further relevant records under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Board. I direct it to assist the applicant to make a proper application for a statement of reasons under section 10 of the Act. I affirm the decision of the Board to refuse to release further records to the applicant under section 15(1)(a) of the FOI Act.

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