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Ms. X and Dublin City Council (FOI Act 2014)

Case Number: 150382


Whether the Fire Brigade was justified in refusing to release two additional records concerning an apartment block which came to light during the course of the review and whether it was justified in refusing to release further records under section 15(1)(a) of the FOI Act on the grounds that no further records could be found

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

In her FOI request of 16 July 2015, the applicant sought a copy of all surveys and reports (fire safety and structural) relating to a named apartment complex. In its decision of 2 August 2015, the Fire Brigade refused to release one record, a Fire Safety Assessment Report carried out in relation to the apartment complex. On 7 September 2015, the applicant sought an internal review of this decision arguing that further records exist which are relevant to her request. In its internal review decision, which appears to be undated, the Fire Brigade affirmed its original decision. On 31 October 2015, the applicant applied to this Office for a review of the Fire Brigade's decision. Both the applicant and the Fire Brigade made submissions in the course of the review. I have decided to conclude this review by issuing a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the Fire Brigade, to correspondence between the Fire Brigade and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review and discontinuance of review in respect of one record already released
I note that the Fire Safety Assessment Report, which is the subject matter of the Fire Brigade's decision in this case, has already been the subject of a review by this Office (case 150381 refers). That review concerned the same applicant. I understand the applicant has now been provided with a copy of this report. Section 22(9)(a)(iii) provides that a review may be discontinued if the matter to which the application relates is, has been or will be, the subject of another review under this section. In accordance with section 22(9)(a)(iii), I hereby discontinue this review in respect of the Fire Safety Assessment Report. The scope of this review is now confined to the following issues:

- Whether the Fire Brigade has justified its decision to refuse to release two additional records which came to light during the course of this review;
- Whether the Fire Brigade has justified its decision that section 15(1)(a) of the FOI Act applies as no further records exist or can be found which are relevant to the applicant's request.

Preliminary Matters

Section 22(12)(b)
Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Fire Brigade to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Section 13(4)
Section 13(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

Analysis and Findings

The applicant states that she is an owner occupier of one of the apartments in the complex referred to in her FOI request. She claims that there are fire safety issues affecting the complex and the Fire Brigade holds surveys and reports in relation to these fire safety issues which were not referred to in its original or internal review decisions. It is clear therefore, that section 15(1)(a) of the Act is relevant in this review, though the exemption was not claimed by the Fire Brigade at any point.

Section 15(1)(a)
Section 15(1)(a) 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. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. My 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 www.oic.ie).

Applicant's Submissions
In 2014 the applicant made an FOI request to the Fire Brigade for data, correspondence, maps and information in relation to the apartment complex referred to in this request. The applicant stated that, following her previous request, the Fire Brigade provided her with a lengthy schedule of records. According to the applicant, this schedule included surveys and reports which fall within the scope of her present request. However these records were not listed in the schedule attached to her present request. The applicant also provided this Office with correspondence which, according to the applicant, indicates that further relevant records exist. The first letter of 19 June 2015, written by a public representative to residents refers to a named public body seeking tenders for the balance of fire safety improvement works. The second letter of 18 December 2015, is written by the Developer to residents and refers to his attempts to obtain named reports from a public body. The applicant submits that the Fire Brigade holds further relevant reports including the following reports:

1. Building Survey and Schedule of Works Report;
2. Defect Snagging Report;
3. Building Control Compliance Report;
4. Service Shafts and Fire Alarm Systems Report.

Fire Brigade's Submissions
In its submissions to this Office, the Fire Brigade stated that in 2014, it located 341 records which were relevant to the applicant's previous request. The Fire Brigade stated that a schedule of these records accompanied its previous decision which listed a number of surveys/reports which were refused. The Fire Brigade stated that:

"the first decision (Our Ref 3980/14) was never appealed or indeed records included in its schedule specifically mentioned by [the applicant] when she made her second application. Based on this, the Fire Brigade decided to avoid unnecessary duplication by only searching and retrieving surveys/reports received post the date of the last record of the first request."

According to the Fire Brigade, that search identified the Fire Safety Assessment Report as the only relevant record which post-dated the previous request. In relation to the four specific reports identified by the applicant, the Fire Brigade stated that, following searches, it was unable to locate reports 1 or 2. It confirmed that it holds reports 3 and 4. However, it stated that these reports were refused in the previous decision which the applicant did not appeal. The Fire Brigade stated that the correspondence provided by the applicant appeared to refer to the Fire Safety Assessment Report as this report was commissioned by the public body in question and provided to the Fire Brigade.

Additional Reports 3 and 4
An FOI body is entitled under section 15(1)(g) of the FOI Act to refuse a request which forms part of a pattern of manifestly unreasonable requests from the same requester. However, there is no indication that this request forms part of such a pattern, nor has the Fire Brigade sought to rely on section 15(1)(g) of the Act. The Fire Brigade has effectively refused to consider part of the applicant's request on the basis that she did not appeal a previous refusal of the records concerned and it wished to "avoid unnecessary duplication." I am not satisfied that the Fire Brigade has justified its refusal of access in relation to the two additional records which came to light during the review (i.e. the Building Control Compliance Report and the Service Shafts and Fire Alarm Systems Report). I propose, therefore, to annul this aspect of the Fire Brigade's decision and direct that a fresh decision making process be undertaken in respect of these two additional records which will be subject to the same rights of review and timelines applicable to the original request.

Adequacy of Searches for further records
The Fire Brigade stated that in 2014, when the applicant made her original request it spent a lot of time in searching and retrieving the 341 records listed on the schedule attached to that decision. It stated that following the second request in 2015, new searches were conducted for surveys or reports which post-dated the last record located following the earlier searches. It stated that search requests were sent to Fire Brigade staff who passed on to the FOI Officer whatever relevant records they had in their custody. According to the Fire Brigade, staff checked both soft and hard copies of records in their possession. The Fire Brigade stated that the majority of records relevant to the applicant's request were held in working files. It stated that as these files are active it would be very unusual for anything belonging to such files to be misplaced or for anything belonging to them to be archived. The Fire Brigade stated that practically all surveys received by it are in hard copy and, if a soft copy was ever received, it would be printed of and placed on file. Therefore, according to the Fire Brigade, it is very unlikely that any relevant records were not accounted for.

I am satisfied that the Fire Brigade has demonstrated that it has taken all reasonable steps to search for further records relevant to the applicant's request. I find that section 15(1)(a) applies as no further records exist or can be found which are relevant to the applicant's request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Fire Brigade in this case. I annul the decision of the Fire Brigade in respect of the two additional records which came to light during the course of this review and I direct that a fresh decision making process be undertaken in relation to these two records, which will be subject to the same rights of review and timelines applicable to the original request. I affirm the Fire Brigade's decision in relation to section 15(1)(a) of the 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.


Elizabeth Dolan
Senior Investigator