Whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for records concerning proposals for the development of lands held by the Council

17 October 2019

Background

In a request dated 16 November 2018, the applicant submitted a request to the Council for the following:

1. A list and site map of all land banks held by the Council
2. The current market value of each piece of land
3. The price paid by the Council for each piece of land
4. Records on proposed developments for same lands and the status of those proposals
5. Future proposals for remaining lands

On 21 January 2019, the Council issued a decision in which it refused the request. It refused part 1 under section 15(1)(d) of the FOI Act, on the ground that the records had already been released to the applicant. Parts 2 and 5 of the request were refused under section 15(1)(a) of the FOI Act on the grounds that the records sought did not exist. Part 4 of the request was refused on the ground that such records, where they exist, would form part of the deliberative process of the Council (section 29(1)), or, where the process was finalised, would have already been published. It made no reference to the information sought at part 3.

The applicant sought an internal review of that decision, following which the Council varied its original decision. It undertook to provide details of original purchase price of the various lands where available in response to part 3 of the request. It affirmed the remainder of the decision. On 15 April 2019, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, the Council provided this Office with an explanation as to why it holds no records which contain details of the current market value of each piece of land. It also stated that it had subsequently provided the applicant with details of the price paid for the various lands, where available. The applicant subsequently agreed to withdraw parts 1 to 3 of her request.

In relation to parts 4 and 5, the Council stated that while it had originally relied upon section 29(1)(a) of the FOI Act to refuse access to certain records, its position was that no relevant records exist and that section 15(1)(a) applied to those parts.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the Council as outlined above and to communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for records concerning proposed developments for lands held by the Council, the status of those proposals, and future proposals for remaining lands, on the ground that no relevant records exist.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In its submission to this Office, the Council stated no searches were undertaken for records concerning proposed developments for lands as it does not currently have any proposals for the developments of any of its land banks. It also stated that no search was undertaken in relation to future proposals as “this refers to the future and does not therefore fall within the scope of the request”. I assume what the Council meant by this is that records would only be created at a time when future proposals are formed and as such, no relevant records currently exist.

I note that the table the Council released to the applicant containing details of the original cost of its various lands also contains information under the headings “Development Status” and “Development Status/Potential – Remaining Lands”. This appears to contradict the Council’s assertion that it has no proposals for the development of any of its lands. In quite a number of instances the comment “under consideration” is recorded against certain lands.

In my view, the Council appears to have taken an unreasonable and unduly narrow interpretation of the applicant’s request. If the potential development of a piece of land is under consideration, then it seems to me that any records relating to that consideration must be regarded as potentially coming within the scope of a request for records concerning proposals for the use of that piece of land. It does not have to be the case that a particular proposal has been agreed and adopted. It appears to me that the Council has taken a position that if no concrete proposal has been agreed, there can be no records concerning such proposals. If that is the case, I disagree.

In any event, in the particular circumstances of this case, the mere fact that the Council undertook no searches whatsoever in an effort to identify whether relevant records might exist, is sufficient for me to find that it was not justified in refusing the request under section 15(1)(a). I cannot accept that all reasonable steps have been taken to ascertain the whereabouts of relevant records.

I consider, therefore, that the appropriate course of action to take is to annul the Council's decision in respect of parts 4 and 5 of the applicant’s request, the effect of which is that the Council must consider the relevant parts of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council's decision.

For the benefit of the applicant, however, I should explain 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.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices, which is not of particular relevance in this case. This means that the applicant does not have a right under the Act to require the Council to provide information or answer questions on its proposals for the development of lands if such information is not contained in records that already exist.

I would also add that on its face, the applicant’s request is potentially quite broad. Records on the proposed development of lands could potentially capture a significant breadth of records. Depending on the volume of records involved, both parties should bear in mind that voluminous requests run the risk of being refused under section 15(1)(c).

In the circumstances, it seems to me that it might be appropriate for the Council to engage with the applicant in the first instance before considering her request afresh with a view to coming to an agreement on the precise nature of the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse, under section 15(1)(a), the applicant’s request for records concerning proposed developments for lands held by the Council, the status of those proposals, and future proposals for remaining lands, on the ground that no relevant records exist. I direct the Council to conduct a fresh decision-making process in respect of the relevant parts of the applicant’s 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