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Mr X and Wicklow County Council (FOI Act 2014)

Case Number: 160106

Whether the Council was justified in refusing the applicants' request for access to records concerning planning "complaints files"

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

Background

On 9 March 2015, the applicants made an FOI request to the Council for access by inspection to "planning complaint files regarding [planning file] 12/3481". The Council's ultimate refusal of the request, on the basis that the requested records were exempt under sections 15(1)(a), 35(1) and 42(m) was the subject of this Office's review in Case Number 150180. The Council adopted a blanket approach by claiming that these exemptions applied to all records within the scope of this request and did not examine the files on a record by record basis. During the course of the review, the Council identified additional records which were not considered in the original decision or internal review decision and were clearly within the scope of the request. On 30 October 2015, I found that the Council had not justified its reliance on the exemptions claimed as it had not considered the content of individual records as required by the FOI Act. I annulled the Council's decision and directed it to undertake a fresh decision making process in relation to the applicants' request of 9 March 2015.

The Council made a fresh decision on that request on 24 November 2015. It identified 106 records to which access by inspection was granted with the exception of two records (numbers 15 and 19). In refusing to release the records concerned, it relied on the provisions of section 32(1) the FOI Act which relate to law enforcement and public safety. The applicants sought an internal review of this decision on 17 December 2015 and the original decision was upheld by the Council on 12 January 2016.

The applicants applied to this Office on 1 March 2016 seeking a a review of the decision of the Council. The applicants itemised 29 different records and questions in their application and are of the view that the records identified should be held on the complaints file. During the course of this review the Council agreed to provide access to records number 15 and 19 and invited the applicants to view the records relevant to this review.

Submissions have been received from the applicants and the Council. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In carrying out my review, I have had regard to the application and the detailed submissions from the applicants, the submissions from the Council and correspondence between the applicants and the Council. I have also had regard to the provisions of the FOI Act.

 

Preliminary Matters

In case number 150180, I detailed the background to this case in that the Council had identified two Unauthorised Development (UD) files coming within the scope of that review. I also commented on the volume of submissions sent to this Office by the applicants arising from their grievance with the Council. In that decision I stated that the jurisdiction of the Commissioner does not extend to examining how the Council dealt with the applicants' complaints or any procedures in this regard. The remit of the Commissioner is to review decisions taken by FOI bodies concerning access to records and not to adjudicate on disputes between FOI bodies and members of the public. I would have expected that the applicants would have taken heed of my comments in any further FOI cases. However, in their application to this Office, the applicants continue to complain about the actions of the Council, request further actions and pose additional questions. The applicants sent eight letters to this Office, in a five month period, comprising 274 pages, most of which were not relevant to this review. In their submissions, the applicants referred, among other matters, to access by inspection of a Building Control File. However, their original request sought access to the "complaint file"; therefore, any records on the Building Control File are outside the scope of this review. The applicants also complained about certain records not being filed on relevant files. However, it is not the role of the Commissioner to comment on where FOI bodies choose to store their documents once they provide access to the records as required by the FOI Act. In order to bring closure to this case, I have confined my examination to the 29 items identified by the applicants in their application to this Office dated 1 March 2016. I believe that to do otherwise would be to extend the jurisdiction of this Office to matters not properly before the Commissioner in this review.
According to the Council, in order to address the many complaints and issues made by the applicants, the CEO ordered a complete review of the applicants' complaints and the Council's responses. Following the completion of the review, the Council states that it forwarded a copy of the report to the applicants. The Council submits that it provided the applicants with access by inspection on 27 April 2016 to the two UD files including the two records originally withheld (numbered 15 and 19). While the applicants said in their submission dated 3 May 2016 that records numbered 15 and 19 were not available to them, according to the Council, these records are available on request.
The 29 items detailed in the application include 16 items that do not relate to records, are questions posed or that postdate the original FOI request and are therefore outside the scope of this review. Using the numbering system adopted by the applicants, the remaining records the subject of this review are:
25(a), (b), (c), (d), (e), (f), (g) and (o),
UD Register former Wicklow Town (WTC) Planning Section - (a) and (b),
UD Register Wiclow County Council (WCC) Planning Enforcement - (a) and (b),
item number 4.

I stress again that this Office has no role in adjudicating on any of the complaints detailed by the applicants.

Scope of the Review

The issue in this review is whether the Council was justified in its decision to refuse access to the 13 records identified above on the basis of section 15(1)(a) of the FOI Act. Essentially, the applicants' claim is that certain records are held by the Council in addition to those identified to which access has been granted.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

According to the Council, following the amalgamation of Wicklow Town Council and Wicklow County Council, there was a change in the way files were treated and maintained and that, in order to ensure consistency and transparency, all files coming from all Town Councils were maintained in accordance with the County Council's procedures. The applicants viewed the records on 27 April 2016 and asserted in their many submissions that the documents referred to should exist. They are also of the view that further records exist which should be filed on the "complaint file" in the Council. The FOI Act provides for a right of access to extant records held by FOI bodies; it does not provide for a right of access to records that a requester considers ought to exist even if it is acknowledged that such a record should exist. The applicants identified 13 records, outlined above, which they believe should exist.

Items 25(a), (b), (c), (d), (e), (f), (g) and (o)
Records identified above at 25(a) and (b) refer to two site visits referenced in letters from the Council dated 20/08/2013 and 10/10/2013 respectively. The Council contends that these were site inspections only and that no report or photographs exist of these inspections.
According to the Council, records itemised by the applicants as 25(c), (d) and (f) are identified on file UD 91W as records numbered 22, 60, 61, 62 and 63 and the record at 25(g) is numbered 19 on file UD 4379. All of these records are available for public inspection and therefore are exempt on the basis of section 15(2) of the FOI Act.
In relation to the record referred to at 25(e), the applicants claimed that an official inspected the development on 12/12/2013. They requested a copy of the report. The Council submits that the record detailed by the applicants does not exist as there was no compliance report and no photographs referring to this date.
At 25(o), the applicants requested that all internal reports are placed on the relevant files. According to the Council, all internal reports identified at 25(o) are contained on the relevant files and available for inspection.

UD Register former Wicklow Town (WTC) Planning Section - (a) and (b)
The applicants requested access to "a copy showing (a) UD 12/3481 and (b) UD/P8-91 as date recorded in the UD Register, former Wicklow Town Planning Section". According to the Council, these records do not exist as there are no files with these references in the Council.

UD Register Wiclow County Council (WCC) Planning Enforcement - (a) and (b)
The applicants requested access to a copy showing (a) UD91W and (b) UD4379 "as date recorded in the Council planning enforcement section register". The Council says that the record identified at (a) is recorded as number 22 on the file 14/2125 and is publicly available and that no register page exist for the records at (b) as no warning letter or enforcement notice issued in this case.

Item No 4
This item requested access to a warning letter sent to a named person or any agreement entered into with that person. The Council contends that no warning letter was issued to the named person. It also says that no agreements were entered into with that person and therefore no records exist.

I am satisfied that the Council has responded adequately to this Office's queries and taken all reasonable steps to locate any further records. I see no basis to dispute the Council's position that the records referred to above do not exist. I consider that the Council's decision to refuse to release further records to the applicants was justified, on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find that section 15(1)(a) applies to exempt the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council in this case.

 

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.

Elizabeth Dolan
Senior Investigator