Whether the Council was justified in its decision to refuse to release further records relating to whether a specific road in Galway was under the charge of the Council prior to 1985 

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 January 2017, the applicant applied to the Council for information relating to a road known as "The Avenue-™ in Menlo Village, Galway City, leading from Menlo Village to Menlo Castle. He sought details of the year in which the Galway City Council administrative boundary was extended to include Menlo Village and the Avenue, and whether the Avenue was classified as a public roadway while under the jurisdiction of Galway County Council. 

On 15 February 2017, the Council issued a decision in which it stated that it had decided to grant the request and it released two records. It also stated that the Galway City Council boundary was extended in 1985. The applicant subsequently engaged in an exchange of emails with the Council as there was some uncertainty as to the identification of the road known as the Avenue. On 29 March 2017, he sought an internal review of the Council's decision as he considered that the Council had not provided him with details of the source of the information provided in that exchange of emails concerning the Avenue. On 13 April 2017, the Council affirmed its original decision. On 2 September 2017, the applicant applied to this Office for a review of the Council's decision.

In an email dated 11 October 2017, Ms Hannon of this Office wrote to the applicant and informed him of her view that section 11(4) of the FOI Act was of relevance to the review as, with limited specified exceptions, there is no right of access to records that were created before the commencement of the FOI Act. Ms Hannon invited the applicant to make a further submission and also offered him an opportunity to withdraw his application for review. 

No further submissions were provided by the applicant. Therefore, I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to the communications between the Council and the applicant, and to the communications between this Office and both the applicant and the Council on the matter.  

 Scope of the Review

This review is solely concerned with whether the Council was justified in refusing to release further records relating to the applicant's request for information relating to the road known as the Avenue in Menlo Village.

Analysis and Findings

It is important to note at the outset that while the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. 

Furthermore, under section 12(1), a person seeking access to records must provide sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. The Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

In this case, as outlined above, the Council stated that the Galway City Council boundary was extended in 1985. As such, it is clear that any relevant records containing the information sought by the applicant would have been created in that year or earlier. Section 11(4) of the FOI Act provides that a right of access under the FOI Act does not normally arise in the case of records created before the effective date which, in the case of the Council, is 21 October 1998. This means that any records held by the Council that were created before 21 October 1998 are excluded from the FOI Act unless section 11 (5) of the FOI Act applies. 

Section 11 (5) of the FOI Act provides that access to records created before the effective date may be granted where access is necessary or expedient to understand records created after the effective date or where the records relate to personal information about the requester. The applicant has not identified any record created after 21 October 1998 that cannot be understood without access to records created in or before 1985 relating to the road known as the Avenue, nor has he suggested that the records sought relate to personal information about him. I find that section 11(5) does not apply.

In conclusion, therefore, I find that the Council was justified in refusing to release further records relating to the applicant's request for information relating to the road known as the Avenue in Menlo Village on the ground that no right of access would exist to any such records, given the date of their creation. Notwithstanding my decision, I note it is the Council's position that it has provided the applicant with any information it could locate concerning his request. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the Council to refuse to release further records coming within the scope 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