Whether OSI was justified in refusing access, under section 15(1)(a), to records used to map a particular property boundary in 2012, on the basis that no such records exist or can be found

13 May 2022

Background

In a request dated 16 November 2021, the applicant referred to a record he received from OSI on foot of an earlier request which indicates that a gateway on a property boundary is curved where it meets the road, and he sought access to the records that led to the mapping of the curve. It is the applicant's position that the curve never existed and it appears that when he raised this with OSI in previous correspondence, he was informed that the person who carried out the revision in 2012 confirmed that he had mapped the features as he saw them on the ground.

In a decision dated 10 December 2021, OSI refused access to one record under section 15(1)(i) on the ground that it had been released to him on foot of a previous FOI request, and granted access to one record from its Surveying and Remote Sensing Department, taken from its Spatial Data Update Planning interface for a specified map's 2012 Revision. It also provided some information on how OSI carries out its surveying activities.

On 15 December 2021, the applicant sought an internal review of that decision. He argued that a field revision of the boundary in 2012 could not have taken place as the boundary mapped did not represent the physical boundary that was in place at that time. He argued that the OSI field officer used some third party information to create the boundary that was mapped in 2012. On 7 January 2022, OSI affirmed its original decision.

On 13 January 2022, the applicant applied to this Office for a review of OSI's decision. In his application, he argued that OSI's response that a field survey produced the data is not plausible and that he had previously provided dated photographic proof that the boundary has not changed since 2009. During the course of the review, the applicant made further submissions in which he alleged that the physical features mapped never existed and could not have been mapped as a result of OSI's field survey. He also provided the photographs mentioned above.

Subsequently, the Investigating Officer provided the applicant with details of OSI's submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that the records sought did not exist, and she invited him to make a submission on the matter. The applicant made further submissions to this Office.

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 between the applicant and OSI as outlined above and to communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

OSI's position is that no records other than those already released exist. In essence, this is a claim for a refusal of the request under section 15(1)(a) of the FOI Act. Accordingly, this review is concerned solely with whether OSI was justified in refusing access, under section 15(1)(a) of the Act, to any records used to map the property boundary in question in 2012.

Preliminary Matters

Before considering the substantive issue arising, I wish to make a number of preliminary points. I note that in his application for review, the applicant provided a detailed account of why he considers that the boundary could not have been mapped per OSI's description and that the records sought should exist. He expressed specific concerns about the veracity of OSI's position that the revision was conducted by field survey and without the use of any third party information. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Accordingly, the appropriateness, or otherwise, of the actions taken by OSI or the veracity of its claims in relation to the revision of the mapping of the property boundary is not a matter for consideration by this Office.

Second, it is also relevant to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).

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. The Commissioner's 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 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.

As I have outlined above, OSI provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no relevant records exist. As the applicant has already been provided with the details of OSI's submission, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In summary, OSI's position is that it conducted a number of searches and no further relevant records were located. It said that it does not use external information and the only record created and held following a revision is the map itself. It said the search was conducted by

the Senior Operations Manager in the Surveying and Remote Sensing Department. It said the activities of the field survey fall within scope of the Surveying & Remote Sensing division and records would not be held elsewhere. It said the Senior Operations Manager searched for records using the project name.

OSI added that the Map tracking system/Apex web interface was the system used for map production and searched in this instance. It said the FOI Officer liaised with the Senior Operations Manager, who led the search in the Surveying & Remote Sensing Division. It said the Senior Operations Manager also consulted with the field reviser who carried out the revision and he confirmed to the Senior Operations Manager that he mapped the features as he saw them on the ground.

OSI said the revision that forms the core of the applicant's FOI request (2012) was conducted via a field revision. It said a field revision involves the area being visited on the ground by a reviser using GPS equipment. It said it does not consult with any organisation or parties with regard to data captured or content authentication or in relation to content of mapping, and therefore no records of this kind exist.

In his response to the Investigating Officer, the applicant argued that he had provided proof that the curve mapped by the field reviser did not exist at the time. He argued that OSI should conduct a full investigation to determine why the field reviser mapped what he described as a false boundary.

Following receipt of the applicant's response, the Investigating Officer contacted the relevant field reviser. He said that as far as he could recall, there was construction ongoing at the site when he visited it in 2012, but the building site was closed at the time due to the economic crash. He said he recalled that area being fenced off on the day, but noted that this might have been a change from the previous state of the site, and may have changed at later stages as well. He said that a field revision does not seek to establish whether a boundary (e.g. fence or wall) is where it should be according to property lines, but rather where a boundary (e.g. fence or wall) actually is on the day.

It is important to note that this Office has no role in determining whether or not the field reviser correctly mapped the boundary as it was at the time. The only issue before us is whether OSI holds further records that might explain the discrepancy. As I have outlined above, OSI said it does not use external information and the only record created and held following a revision is the map itself. It said the revision was conducted via a field revision, while the field reviser said he mapped the features as he saw them on the ground. While the applicant argues that he presented proof that the boundary was mapped incorrectly, no evidence has been presented to us to suggest that further relevant records exist that might explain the discrepancy. Our role is limited to determining whether OSI has taken all reasonable steps to ascertain the whereabouts of the records sought. Having regard to the details of the searches undertaken by OSI in this case and to the details of its mapping processes, I am satisfied that it has.

Accordingly, I find that OSI was justified in refusing access, under section 15(1)(a) of the Act, to any further records relating to the mapping of the boundary in question in 2012 on the ground that no further relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm OSI's decision to refuse access, under section 15(1)(a), to further records relating to the mapping of a particular boundary in 2012 on the ground that the records sought do not exist or cannot be found.

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