Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records related to the removal of a tree located at a specified address, on the ground that no further records exist or can be found

22 December 2022

Background

In a request dated 23 June 2022, the applicant sought access to the following:

1. All data relating to the tree outside a specified address in Dublin, including a drawing showing that the tree was to be removed, as referenced by the Council's contractor in a conversation with the applicant.
2. All data relating to another tree outside a nearby address, which the applicant had been previously informed by a Council Official was scheduled for removal.

In a decision dated 8 July 2022, the Council stated that it had granted the applicant's request. It released one record and provided some information to the applicant relating to the matters concerned. On 11 July 2022, the applicant requested an internal review. She queried why specific records had not been released and described the single record released as "obscure and incomprehensible".

On 2 August 2022, the Council affirmed its initial decision. Its position was that the only record it held relating to data on the trees concerned had been provided to the applicant.

On 19 August 2022, the applicant made an application for review to this Office, as she was of the view that additional records should exist relating to her request.

The Council's took the view in its original and internal review decisions that as the applicant had requested access to "data", the information set out in its decision letters had addressed her request. Essentially, its position was that it held one record containing such data, i.e. a printout from its tree management software, "Arbotrack", which it had also provided to the applicant. However, during the course of this review, the Investigating Officer indicated to the Council that she was proceeding on the basis that the applicant had sought access to records containing the data or information sought. On foot of this, the Council identified additional records relating to the applicant's request concerning correspondence in relation to the tree outside her residence, which it released subject to the redaction of some personal information relating to third parties.

The Council's submissions to this Office also included details of searches undertaken in order to locate relevant records in this case. The Investigating Officer provided these to the applicant and invited her to comment. In her response, the applicant did not provide any further arguments relating to the existence of additional records. However, she indicated that she wished the review to proceed to a decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Council in support of its decision. I have also examined the records at issue and have had regard to the applicant's comments in her application for review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council's position is that no further relevant records exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant's request.

Preliminary Matters

It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This Office cannot extend the scope of this request to include any comments on the FOI body's function.

Before I address the substantive issues arising in this case, it is important to note 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. However, as noted above, the Council appears to have taken the view that what appeared to be a request for data in this case was a valid FOI request and proceeded accordingly. I would remind the Council that where it is unclear what records are sought in an FOI request, it is obliged to give assistance to the requester. In future I would expect it to clarify what records are sought with the requester in such circumstances.

Analysis and Findings

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. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. 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 his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Council provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review. As noted above, these details were also provided to the applicant.

Essentially, the Council's position is that the only relevant records located are the Arbotrack printout, which is a record of tree inspections; and a report from its corporate customer care system, which includes records of correspondence with the applicant as well as elected members and members of the public. Both of these records have been provided to the applicant.

In response to specific queries about records held by its contractor, the Council said that it consulted the contractor concerned. Essentially the Council said that the contractor stated that it had no record of any discussion with the applicant and that it did not have a copy of a map, drawing or any other document referred to in her request. 

In its submissions to this Office, the Council stated that it located no hardcopy records in this case and that no relevant records had been destroyed. It also stated that details of its tree maintenance programme are published on its website. The Council further stated that it carried out a search for records using relevant keywords including the applicant's names, address and the location of the trees in question.

Following a further enquiry from the Investigating Officer about the original records referred to in the printout from its customer care enquiry system, the Council provided further submissions about its relevant record management practices to this Office.

The Council stated that hardcopy letters handed in to Customer Care or received in the post are sent on to the relevant department. It stated that these letters are scanned by the relevant department, a customer care enquiry is opened, the scanned letter is attached and referred to the relevant member of staff to address and that the hard copy letter is then shredded.

The Council stated that all incoming emails are saved in a designated file on Outlook and could be retrieved as required. It said that older emails, i.e. prior to 2021, are archived and could be retrieved by the Council's IT Department. It also said that there are six customer care enquiries recorded in the records released to the applicant which originated by email. In its submissions to this Office, the Council explained it would take some time to search for and retrieve the relevant emails. While details of email correspondence are recorded in the Customer Care enquiry records which have been released to the applicant, I note that no originals emails have been located or considered for release by the Council in this case.

On this basis, I am satisfied that further relevant records exist which have not been considered by the Council in its decision on the applicant's request. In the circumstances, I am not satisfied that the Council has justified its decision to refuse access to additional records containing the information sought by the applicant on the basis that they do not exist or cannot be located once all reasonable steps to ascertain their whereabouts have been taken, under section 15(1)(a) of the FOI Act.

However, given the nature of the records at issue and given that release of any emails would likely involve the disclosure of information relating to third parties, I do not consider it appropriate to direct the release of any relevant emails located by the Council's IT department. Instead, I consider that the appropriate course of action is to annul the Council's decision and to direct it to make a new first instance decision in respect of the applicant's original request. If the applicant is unhappy with the Council's fresh decision, it will be open to her to apply for an internal review of that decision and, subsequently, to apply for a review by this Office.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision to refuse access to further records under sections 15(1)(a) of the Act. I direct it to undertake a fresh decision making process in relation to 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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

Sandra Murdiff

Investigator