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Whether the Council was justified in refusing to release certain specified records relating to Dun Laoghaire - Rathdown Leisure Services Limited ("the Company")

Conducted by the Information Commissioner in accordance with section 34(2) of the FOI Act

Background

There is a long and complex background to this particular request which I do not propose to recite in full here. There has been extensive correspondence between the parties but for the purposes of this review I have set out what I consider to be the essential facts below.

The Company was set up to manage four leisure centres located at Loughlinstown, Glenalbyn, Meadowbrook and Monkstown.

The applicant submitted a request to the Council on 8 June 2011 for "whatever records Dun Laoghaire Rathdown County Council holds in relation to DLR Leisure Services Ltd." On 29 July 2011, the Council refused the applicant's request on the basis that it was not valid and that the Council was precluded from releasing information regarding a private Company. On 25 August 2011, the applicant sought an internal review of this decision.

The Council wrote to the applicant on 26 September 2011 seeking clarification on the scope of the request. The applicant replied on 30 September 2011 clarifying the scope by identifying the following four categories:

1. Detailed copies of the profit and loss accounts of the individual leisure centres for the period 18 September 2008 to 31 December 2009.
2. Financial, management and membership reports that the Council received from Dun Laoghaire-Rathdown Leisure Services Ltd over the period 18 September 2008 to 31 December 2009.
3. Minutes of any meetings between the two parties over that time frame.
4. A copy of the contract between the Council and Dun Laoghaire-Rathdown Leisure Services Ltd.

On 1 December 2011 the Council issued an internal review decision affirming its original decision and refusing the request under section 10(1)(a) of the Act. On 5 December 2011 the applicant sought a review by this Office of the Council's decision. Progress on the review since that date is set out below under "Scope of the Review".

On 24 March and on 8 April 2015, Ms Monica Brennan, Investigator of this Office, wrote to the applicant setting out the position in this review, including the relevant provisions of the FOI Act. She invited further submissions and the applicant responded on 31 March and 13 April 2015. I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Council and the applicant as set out above and also to communications between this Office and the applicant, as well as to communications between this Office and the Council. Finally, I have had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The applicant's application for review is confined to the four categories of records sought. It is important to note that the scope of this review is limited to identifying and dealing with records relating solely to those four categories. The applicant, in later correspondence with this Office, raised issues such as the appropriateness of the tender process; the approval of the Company's appointment and the amount of meetings held between the Company and the Council (as opposed to whether or not there are records in relation to any such meetings). These issues are beyond the scope of the review and I do not propose to deal with them.

Subsequent to the applicant's application for review, this Office entered into lengthy correspondence with the Council on the issue of whether or not records held by the Company were within the control of the Council. The applicant, following a somewhat similar review involving another town council and leisure centre, appealed the decision of this Office to the High Court. That decision had found that the records of the Company in that instance were not within the control of that Council. This current review was suspended for the duration of those proceedings as it was considered that the ruling in that case could be applicable to this review. Mr. Justice Cross in Westwood Club v Information Commissioner and Bray Town Council (Notice Party) [2014] IEHC 375 found that the records of the company in that case (Shoreline) were within the control of the Notice Party (Bray Town Council). When this review recommenced following that judgment and the subsequent Order of the Court, my Office sought a submission from the Council on the applicability of that judgment to this case in light of the fact that it had maintained that the Company was not subject to FOI legislation. In response, the Council stated that it did not accept that it had any day-to-day control over the affairs of the Company and that the Company had an independent legal status. However, without prejudice to its position as to whether or not the Company's records were within the Council's control, the Council requested, and obtained, the consent of the Company to provide relevant records and to release them to the applicant.

The Company provided detailed records relating to categories 1, 2 and 3 of the applicant's request to the Council. The Council then released these records directly to the applicant. The Council redacted the names of the Company's staff members and suppliers on certain records, but otherwise the records were released in full. In all, 37 records - comprising approximately 280 pages - were released to the applicant and it is the Council's position that all records relating to categories 1-3 of the applicant's request have now been released. Therefore, I am proceeding on the basis that it is not necessary for me to make a finding on the issue of whether the Company's records are under the control of the Council for the purposes of section 2(5)(a) of the FOI Act.

In relation to category 4, the Council has stated that "the issue of draft documents is the subject of ongoing deliberations".

Accordingly, this review is concerned with the question of whether the Council was justified in its decision to refuse further records coming within the scope of the Applicant's request under the provisions of section 10(1)(a) on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Section 10(1)(a)

Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public 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 other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally my function to search for records.

This approach to search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".

I should explain that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought. In other words, the Act does not provide for a right of access to records which, arguably, ought to exist. While on occasion a public body may decide to create or compile information, this is beyond what is required by the FOI Act and the Information Commissioner has no power to require a public body to do so. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

Are Further Records held?

The applicant is of the view that further records must exist. In particular, he highlights that it is inconceivable that further meetings did not take place between the Company and the Council during the relevant time period (18 September 2008 - 31 December 2009). I do not disagree with the applicant that further meetings may have taken place, but the issue before me is whether or not there are records of any such meetings, not whether they may or may not have happened. Similarly, the applicant states that the Council must have received further reports from the Company. He states that he was advised by Mr. Richard Shakespeare from the Council at a meeting in 2011 that regular reports were received from the Company but that this statement was later retracted and the applicant was told that only the annual report was received by the Council.

The Investigator put a series of queries to the Council concerning its searches, its record management and storage practices and related matters including issues which had been raised by the applicant.

The Council's position is that all records coming within the scope and timescale of the request have now been released to the applicant. It stated that searches were carried out at both the premises of the Company (by the Company's CEO) and in the Council offices. The Council pointed out that the Company was a start up in 2009 and that no formal records management policy existed at that time. It said that not all staff who worked in the Company at that time are still employed there; however where contact details were available former staff were contacted and they confirmed that they had no records in their possession. The Council further said that a computer search and a manual search were undertaken of the Company's records. It was also pointed out that the Company moved offices twice from its original location and that no off- site records storage facility exists. According to the Council, there was no formal "legacy" plan or formal records transfer arrangements in place and the hand-over of records from one staff member to another took place on an ad hoc basis.

The Council, in relation to searches of its own offices, noted that of the three staff members primarily involved at the start up phase of the Company, two have retired and the third has passed away. It said that the records of others who had been peripherally involved during that time were also searched. A computer search of the electronic records of all staff members, past and present, directly or peripherally involved was carried out. Searches were made for hard copy files and documents. The Council stated that all working files of six staff members - whom the Council states are the only members of staff who might possibly have been given materials relevant to the request- were manually searched to examine if any records were held by them. The result of these searches was that one record was located, but it was a record which had already been provided to the applicant as part of those released from the Company.

I note the applicant's comments that Mr. Richard Shakespeare indicated that more regular reports were received by the Council. However, these comments were made some two years after the time frame for records sought by the applicant. I consider the fact that the Company was a start up during the relevant time period to be relevant.

Having regard to the Council's detailed submissions and the number and nature of records that have already been made available to the applicant, I am satisfied that all reasonable steps have been taken to search for any further records relevant to the applicant's request. Indeed, it appears that records above and beyond reports received by the Council from the Company (Item 2 of the request) were released. I accept that the Council has satisfied the requirement of section 10(1)(a) to carry out reasonable searches. Accordingly, I find that section 10(1)(a) of the FOI Act applies.

Redacted records

The applicant has raised no objection in relation to the redaction of either the staff members' names or the information concerning the suppliers; however for completeness, I comment on the appropriateness of these redactions below.

Section 28

Section 28(1) of the FOI Act provides that a public body shall refuse a request where access would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition.

The names of various Company employees were redacted from management and financial records which were released to the applicant. These staff members are not employed by the Council and, accordingly, I am satisfied that the release of their names would constitute the release of personal information relating to them. While the Council did not specifically refer to section 28 of the Act in relation to the redactions, I am satisfied that this mandatory exemption does apply. In particular, this information would relate to the employment of the staff members as the records contain details of sick leave, wages paid and training undertaken. Where the names of Council staff members appear, this information should be released as it relates to their employment with a public body and is therefore not exempt from release (Part (I) of the definition of personal information in section 2 of the FOI Act refers.)

"Usage figures" records

The Company provided a record to the Council entitled "Usage figures for October 2009". Associated with this record, which comprised some 15 pages, were details of suppliers to the Company. The Council redacted the suppliers' names. I am satisfied that these suppliers' names do not come within the scope of the applicant's request.

The Contract

It could be inferred from the Council's submissions that the contract, which it said is still in the form of a draft agreement, is being withheld on the basis of section 20 of the Act which allows for the refusal of records revealing the deliberative process of a public body. However, it is not necessary for me to examine this further because the draft agreement falls outside of the scope of the request. The applicant requested "a copy of the contract between the Council and Dun Laoghaire-Rathdown Leisure Services Ltd." The Council has stated that no contract was executed at the date of the request. As of 10 March 2015, this draft agreement had still not been executed. The applicant had been told by the Council that, once executed, a copy of the contract would be provided. As no agreement has been executed, no contract exists between the parties and, accordingly, I have no option but to find that section 10(1)(a) applies to this category on the basis that the record does not exist.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to further records, in so far as any such records may exist, under the provisions of section 10(1)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner