Ms X and Louth County Council [2024] IEIC 145127 (03 May 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Council was justified, under sections 15(1)(a) and 15(1)(b) of the FOI Act, in refusing the applicant's request for information related to the Vacant Property Refurbishment Grant Scheme

3 May 2024

Background

In a request dated 2 November 2023 the applicant sought access to the following information related to a named company (the company) contracted to assess grants under the Croí Cónaithe Vacant Property Refurbishment Grant Scheme (the Grant):

When was the company contracted to assess the Grant on behalf of the Council and how long is the contract for;
Who made the decision to appoint them;
Who is their direct point of contact in the Council;
Was there a tendering process to appoint them, who overseen this process;

a. If so, how many applicants were there for this contract?

Why did the Council appoint the company to assess these applications;
Why when previous applications were assessed by the County's engineer, did the engineer not finish those applications to ensure continuity;
From where, within the Council does the funding for the company come from;
What budget does it come from and is it from any funds allocated for the Grant;
What terms of reference have the company been provided with for the assessment of grant applications and does it require them to provide a saving by not approving the full amount;
What agents does company use to call to people's houses and what are their qualifications;

a. Please provide the full list of names and associated qualifications

-�b. What training if any have the Council provided to these agents

A copy of the contract that the company have been provided with to conduct this work on behalf of the Council;
How many grant applications, in full, have the company approved, on behalf of the Council, since their appointment to conduct this work;
All correspondence and emails between a named Council staff member and a named site inspector from the company.

On 15 November 2023, the Council refused the applicant's request on the basis that the request did not contain sufficient particulars to enable the records to be identified by the taking of reasonable steps, as required under section 12(1)(b) of the Act. The Council said that as the applicant's request is primarily for information rather than records her request was transferred to a Senior Executive Officer in the Housing Section of the Council to contact her about her queries. I understand this Officer contacted the applicant by phone to discuss her request and that she indicated she wished to proceed with her FOI request. On 24 November 2023, the applicant requested an internal review. She said the information requested was detailed and specific and should have been recorded by Louth County Council as a matter of record. In a decision dated 2 January 2024 the Council varied its original decision. It affirmed its decision to refuse parts 1-12 of the applicant's request on the basis that it is a request for information rather than records. The Council refused part 13 of the applicant's request under section 15(1)(a) of the Act on the basis that the named staff member did not have any direct dealings with the company's site inspector. On 9 January 2024, the applicant applied to this Office for a review of the Council's 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 correspondence outlined above and to the submissions made by the Council in support of its decision I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Council cited section 12(1)(b) of the Act as the reason for refusing parts 1-12 of the applicant's request, this is an effective refusal of the applicant's request under section 15(1)(b) of the Act, which provides that an FOI body may refuse to grant a request where it does not comply with section 12(1)(b).

Accordingly, this review is concerned with whether the Council was justified in refusing parts 1-12 of the applicant's request under section 15(1)(b) of the Act and whether it was justified in refusing part 13 of her request under section 15(1)(a) of the Act.

Preliminary Matters

For the benefit of the applicant, I wish to explain that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by these bodies. 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. It is also worth noting that the Act does not require FOI bodies to answer questions or to create records if none exist, apart from a specific requirement under section 17(4) of the Act to extract records or existing information held on electronic devices.

Analysis and Findings

Section 15(1)(b) - Parts 1-12 of the applicant's request

Section 15(1)(b) of the FOI Act allows an FOI body to refuse to grant a request if it considers that the request does not comply with section 12(1)(b), which requires that a request contain sufficient particulars in relation to the information sought to enable the record to be identified by the taking of reasonable steps.

It is important to note, however, that section 15(1)(b) is subject to section 15(4) of the FOI Act. Section 15(4) provides that a body cannot refuse a request under section 15(1)(b) unless it has first assisted or offered to assist the requester to amend the request so that it would no longer fall to be refused under section 15(1)(b).

Section 15(4)

The FOI Act is silent on the precise nature or level of the assistance to be offered under section 15(4). This Office takes the view that before a body can refuse a request under section 15(1)(b), the body must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, this Office considers that the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

In its submissions to this Office the Council said that it did not offer assistance to the applicant until after it issued its original decision to her. As noted above, the Council contacted the applicant on 24 November 2023 by telephone to discuss her request, after having refused her request because it considered it a request for information rather than for records. In its submissions to this Office, the Council said that the information sought by the applicant is not contained within a particular record or set of records. It said that for the Council to accurately respond to these questions, staff would be required to collate the answers by collating data from many sources to answer the question which were asked. The Council said it was very prepared to collate and give as much information as was practicably possible to the applicant and that its Senior Executive Officer made contact with the applicant to do so. It said, the applicant refused to take the information on the day of contact. The Council stated that the applicant refused to speak to its staff. The Council said that it did not follow up the call with any written communication to the applicant as she made it very clear during that call that no further communication was required and that she would wait for a response to her FOI appeal.

Having regard to the Council's submissions, I am satisfied that the Council did not comply with the requirements of section 15(4) of the Act before it refused the applicant's request. While the Council attempted to engage with the applicant after it issued its original decision, it did not do so before informing the applicant that it considered her request does not comply with the section 12(1)(b) of the Act. Furthermore, it seems to me that the Council's attempt to engage with the applicant on 24 November 2023 was done more with the intention of dealing with her request outside of the FOI Act, rather than an effort in assisting her to amend her request so that it no longer falls to be refused. While this may have been a reasonable approach in the circumstances, it seems clear that the applicant wanted to continue with her FOI request, as she is entitled to do. Accordingly, I find that the Council did not comply with the provisions of section 15(4) in this case. This finding, of itself, is sufficient for me to find that the Council was not justified in refusing the applicant's request under section 15(1)(b) of the Act, and I find accordingly. I therefore direct the Council to process parts 1-12 of the applicant's request afresh.

Section 15(1)(a) - Part 13 of the applicant's request

The Council refused part 13 of the applicant request, for all correspondence and emails between a named Council staff member and a named site inspector from the company, under section 15(1)(a) of the FO1 Act.

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. The role of this Office 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 also 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

In its internal review decision, the Council stated that the named Council staff member "does not, and has not, had any direct dealings with" the site inspector from the company. In its submissions to this Office, the Council said that it carried out thorough searches of its physical files for the grant scheme and no records were found of correspondence between the individuals named by the applicant. The Council said that an independent member of staff not involved with the grant scheme searched the laptop and emails (including inbox, deleted mails, sent mails and mailmeter system) of the staff member named in the applicant's request, and confirmed that no correspondence had been located. The Council said it also searched its electronic files where all copies of relevant correspondence are kept. It said that these files are stored on a shared computer drive with access given to members of staff currently working in the Housing Division. The Council said no correspondence between the named individuals was located. In its submissions to this Office the Council reiterated that the named staff member "did not have any contact, and indeed would have no reason to be in contact with" the named individual from the company.

In its submissions, the Council said that the communication between the named company and the Council in relation to the applicant was with other staff in the Council who work on the Vacant Property Refurbishment Grant Scheme. As the applicant's request is for correspondence between the specific individuals named in her request, any other communications between the Council and the named company does not come within the scope of this review. It is, however, open to the applicant to make a new FOI request for any such records, should she wish to do so.

The question I must consider in regard to part 13 of the applicant's request is whether the Council has taken all reasonable steps to ascertain the whereabouts of all correspondence and emails between the named Council staff member and the named site inspector from the company in question. Having considered the Council's submissions, I am satisfied that it has. Accordingly, I find that the Council was justified in its decision to refuse the records sought at part 13 of the applicant's request under section 15(1)(a) of the FOI Act on the basis that the records sought do not exist or cannot be found.

In summary, I find that the Council was not justified in refusing parts 1-12 of the applicant's request under section 15(1)(b) of the FOI Act, as it failed to comply with the requirements of section 15(4). I direct the Council to make a fresh decision on parts 1-12 of the request. If the applicant is not satisfied with the new decision made by the Council, the usual rights of review will apply. I find the Council was justified in refusing part 13 of the applicant's request under section 15(1)(a) of the Act.

Finally, I would remind the applicant that the FOI Act provides for a right to request access to records held by an FOI body; it does not entitle requesters to an answer to each and every question they may have. I would encourage the Council and the applicant to engage with each other to clarify her request and to ascertain what relevant records are held by the Council.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision to refuse the applicant's request under sections 15(1)(b) of the FOI Act and I direct it to process parts 1-12 of her request afresh. I affirm the Council's decision to refuse part 13 of the applicant's request under 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Richard Crowley, investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms X and Louth County Council [2024] IEIC 145127 (03 May 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/145127.html Cite as: [2024] IEIC 145127

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