Whether the Council was justified in refusing access to records relating to three specified planning files

15 December 2023

Background

In three FOI requests each dated 1 June 2022, the applicant sought access to all records (which he specified should include emails, letters, minutes of meetings, records relating to all conversations including phone conversations, memos, logs and notes) related to three related, specified planning files. The planning applications in question relate to the erection of a wind turbine. In three decisions dated 28 June 2022, the Council refused the requests under sections 15(1)(d) and 15(2) of the FOI Act, which respectively relate to records that are already in the public domain and that are available for inspection by members of the public upon payment of a fee.

On 8 July 2022, the applicant sought internal reviews of the Council's decisions on each of his requests. In its internal review decisions dated 28 July 2022 on each of the three requests, the Council affirmed its original decisions. On 4 January 2023, the applicant applied to this Office for a review of the Council's decisions.

In the course of conducting my reviews into these three matters, I formed the view that section 15(1)(a) of the FOI Act, relating to records that do not exist or that cannot be found after all reasonable steps to locate them have been taken, may also be relevant to each. I therefore sought additional submissions from the Council, and from the applicant, on the potential applicability of that provision of the FOI Act. Submissions on section 15(1)(a) were subsequently received from the Council and the applicant and I have considered same in full.

Furthermore, in the course of this review, the Council indicated that it had located four additional records relevant to each of these three requests, and that it had released all four to the applicant.

I have formed the view that, given the closely-related nature of all three FOI requests, and of the Council's decisions in respect of each request, it is appropriate for me to issue one decision that addresses all three matters.

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 relevant records, the correspondence exchanged between the parties, and the submissions made by the Council in support of its decision, as well as those made by the applicant. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matter

It is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Scope of Review

This review is solely concerned with whether the Council was justified under sections 15(1)(a), 15(1)(d) and 15(2) of the FOI Act in withholding access to the records sought by the applicant in each of his three FOI requests.        

Analysis and Findings

Section 15

The Council cited sections 15(1)(d) and 15(2) as grounds to refuse the applicant's requests. As outlined above, in the course of conducting these reviews I also formed the view that section 15(1)(a) may be of relevance to all three cases.

Sections 15(1)(d) and 15(2)

Section 15(1)(d) provides that an FOI body may refuse to grant a request where the information sought is already in the public domain. Section 15(2) further provides that an FOI body may refuse to grant a request where the information sought is a) available for inspection by members of the public whether upon payment or free of charge, or b) available for purchase or removal free of charge by members of the public.

In its decisions on the applicant's FOI requests, the Council stated that all the records associated with the relevant planning files were already in the public domain and could be accessed by the applicant either by inspection at the Council's offices or by paying a fee to have the file copied. The Council reiterated this position in its submissions to this Office. Furthermore, the Council provided this Office with links to its online portal where the records associated with the files could be viewed. I have viewed the material at these links and note that there are a total of four records on two of the files available online (relating to the FOI requests that underpin case numbers OIC-133644 and OIC-133645). All four relate to an application for an extension of the appropriate period of planning permission to the developer, and the Council's granting of this application. The third file, relating to the FOI request that underpins case number OIC-133646, contains a much more substantial amount of records (467 in total). These records include the planning application, the Council's acknowledgment of the planning application, various correspondence and submissions relating to a planning appeal, Orders from the Chief Executive of the Council, drawings, letters notifying the developer of the public notification requirements regarding the planning application, site plans and maps, newspapers advertisements regarding the planning application, planners reports, external reports, site notices, correspondence with various third parties and a very substantial number of submissions regarding the development from interested parties, as well as correspondence from the Council acknowledging receipt of these submissions.

It seems clear to me that the Council was justified in refusing access to these records under both sections 15(1)(d) and 15(2). Simply put, the records are in the public domain, in satisfaction of section 15(1)(d) of the FOI Act, and are available to view both to inspect or purchase, in satisfaction of section 15(2) of the FOI Act.
However, the matter does not end there, because I must consider the question of the additional records that the applicant stated should or may exist in relation to the relevant planning application files. I address the matter of these additional records below.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to have been taken to locate them. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the relevant FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

The basis upon which I determined that I should examine section 15(1)(a) in the context of these FOI requests is that the applicant made clear in respect of each of his requests that he did not accept the Council's position that all the records associated with the planning files were publicly available. The applicant specified a number of categories of additional records in respect of which he requested confirmation from the Council of their existence or non-existence. In particular, in his applications to the Council for internal reviews of its original decisions, and in his applications to this Office for reviews of the Council's decisions, he reiterated that he sought access to emails, letters, minutes of meetings, records relating to all conversations including phone conversations, memos, logs and notes. He requested that, if such records did not exist, the Council explicitly confirm that this was the case.

In both its internal review decisions and in its submissions to this Office on the three cases, the Council confirmed its position that all records relating to the specified planning applications were publicly available. It further stated in its internal review decisions that any further records relating to the wind turbine development in question were contained in a separate Unauthorised Development file, which it noted was the subject of a separate FOI request by the applicant.

I sought further information from the Council as to the basis on which it considered that no further records relating to the relevant planning files existed. I should note first of all that, although it initially confirmed its position that no additional relevant records existed, as outlined above subsequently the Council did locate four additional records, comprising internal Council email correspondence. As mentioned at the outset of this decision, the four records were provided by the Council to the applicant, and in addition the Council confirmed that all four had also been made available on the online planning portal. The Council confirmed that, beyond these four additional records that it had located, its position was that no more records relevant to the planning files existed.
The Council supported its position by outlining that the relevant legislation, the Planning and Development Act 2000 as amended, along with the Planning and Development Regulations 2001-2023 ("the legislation"), set out the statutory basis for the manner in which a planning application progressed through the planning system. The Council stated that the legislation clearly set out the process involved in making an application, as well as the manner in which the Council was required to assess and make decisions on applications. The Council outlined that the legislation provided that all correspondence was required to be placed on the relevant public planning file and as a result, simply put, if any of the additional records sought by the applicant had existed, they would have been placed on the public file (which, as outlined above, is viewable online).
The above notwithstanding, the Council also clarified that records associated with such planning applications were also kept on a physical file. In addition, it stated that a soft copy of the file for each application was maintained, comprising Microsoft Word versions of all correspondence issued. Furthermore, the Council stated that the planner assigned to each application maintained their own electronic version of their planning report. The Council reiterated its position that all of these locations had been searched and no further records existed (beyond the four additional internal correspondence records located and made available). For the avoidance of doubt, the Council stated that, in respect of the types of records stipulated in the applicant's request ("emails, letters, minutes of meetings, records relating to all conversations including phone conversations, memos, logs and notes" which had "not yet been made available to the public"), no records existed that were not on the publicly available planning files.
In considering the Council's response on the matter of section 15(1)(a), I formed the view that it remained somewhat unclear as to how a planning application could proceed from receipt to completion without additional administrative records, such as internal emails, memos, reports, etc, being generated. I therefore sought further information from the Council on this point. The Council responded by confirming that it had searched for such additional administrative records and that none had been located. It set out the process by which a planning application proceeded from receipt to completion, which I do not consider it is necessary to reproduce in full here (although I provided the details to the applicant in order to allow him to make any further submissions that he wished on the matter). In summary, the Council stated that the entire process was centred around the physical copy of the file, which was created after validation of the planning application. The Council outlined that the physical copy would initially be given to the Area Planner, before moving between administration staff, the Area Planner and the Senior Executive Planner (SEP), depending on the stage of the application. The Council emphasised that the file would not be transferred electronically. It stated that all planning staff were aware that any records created, such as reports, memos, etc, should be placed on the file. The Council stated that, in terms of more significant applications, it would not be unusual that informal discussions would occur between a planner and their line manager regarding technical aspects to a file, and that no records would necessarily be created on foot of such discussions.

The Council stated that the process as described above meant that the creation of records was kept to a minimum, with the focus on all times being the updating of the draft planner's report until such time as it was completed. It stated that any reports, etc, received would be scanned to the public file. The Council stated that, in relation to the specific planning applications covered by the applicant's FOI requests, it had asked the Area Planner again if any additional records existed, such as appointments/diary entries regarding site visits, and the planner had confirmed that no additional records existed (beyond the four additional internal correspondence records identified), as the relevant draft planning report had been updated after the site visit.

As outlined above, I provided the details of the Council's submissions under section 15(1)(a) to the applicant for his consideration, and to invite him to make any further submissions that he wished in relation to the matter. The applicant responded, stating that he now also wished to seek access to all deleted files and all deleted emails in relation to his original requests. He argued that deleted records, including deleted emails, were easily retrieved by Council IT departments by using keywords such as the name(s) of the developer, the location of the development, the file reference names and numbers, the nature of the development (eg. "turbine", etc).

I put this response of the applicant to the Council and asked it to provide more information on whether it had the capability to search for and/or retrieve, and if so whether it had in fact searched for, emails and other files that had been deleted. In response, the Council stated that its ICT department had confirmed that it did not have the functionality to search for deleted files, but did have the capacity to search for deleted emails for a period of up to eight years. The Council advised that, in respect of the FOI requests at issue, it had not carried out any searches of archived emails, and set out a number of reasons for this. Firstly, it stated that, in relation to the records in question, all correspondence was retained and put on the active file. In other words, no deletion of records would take place in respect of the relevant files, and all records were placed remained on the file. The Council stated that there was no reason to suggest that any deleted emails relevant to the FOI requests existed.

In addition, the Council stated that it received and handled over 150 FOI requests per year, and its ICT department did not have the capacity to carry out detailed searches on archived deleted emails in respect of either the FOI requests at issue or requests received generally. The Council added that its ICT department would carry out specific searches when requested to do so as part of an FOI request, and would also assist other sections to carry out searches, where the section might notice, for example, missing emails in chains of communication. The Council stated that such searches were specific to particular email accounts over limited and defined periods of time.

Moreover, the Council advised that carrying out broad ICT searches on back-ups of deleted emails, using keywords, without being able to narrow the matter down to specific staff members and specific periods of time, may result in voluminous search results, and produce many records that would likely contain information not relevant to the FOI request. These records, it stated, would require examination by its ICT Department before they could be considered for release. The Council advised that its ICT department did not have the resources to carry out these types of searches and to examine the (likely voluminous) results of same.

The Council also noted that section 15 (1)(a) of the FOI Act required FOI bodies to take all "reasonable steps" to locate records. It stated that it was satisfied that it had done so in respect of the FOI requests in question. It argued that to require it to carry out detailed voluminous searches for records where the record handling process on the files has been set out, and where there was no suggestion in the first instance that any relevant deleted records existed, was not reasonable.

Finally, the Council argued that, if it was to be required to carry out open-ended searches of archived emails and trawl through the results of such searches as a matter of routine, then many requests would have to be potentially refused under Section 15(1)(c) of the FOI Act, which provides that an FOI request may be refused where to grant same would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned. In sum, the Council said that it had set out its records handling process for the relevant records and, in the context of that process, its view was that it had acted reasonably in its search and retrieval response to the applicant's FOI requests

I have considered the queries raised by the applicant in respect of deleted emails and other records, and the Council's response as outlined above, and I find as follows. Having regard to the details of the Department's submissions, firstly I would note that, on the basis of the information available to me, there is no reason for me to doubt the Council's statement that it cannot search for or retrieve deleted files (other than emails). Furthermore, I am satisfied with its explanation as to why it did not carry out searches for deleted emails. I consider that, on the basis of the information provided by the Council, there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the records sought. I find that the account from the Council as outlined above constitutes a clear and sufficiently detailed explanation of its systems and processes that accounts for the non-existence of the additional records sought by the applicant, and that all reasonable steps appear to have been taken by the Council in determining whether any such additional records existed. In addition, the Council is correct to point out that the test in section 15(1)(a) is whether searches have been reasonable. This Office does not take the view that the FOI Act requires absolute certainty as to the location or existence of records. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found. Given the requirements of this test, I consider that the Council has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish that the additional records sought by the applicant do not exist were reasonable. 

Accordingly, I find that, in respect of the additional records specified in the applicant's requests, the Council was entitled to rely on section 15(1)(a) of the FOI Act. I find that it was reasonable for the Council to hold, on the basis of its searches, that the relevant records do not exist after all reasonable efforts to locate them had been made, and to refuse that aspect of the requests on this basis.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision in respect of all three of the applicant's FOI requests. I find that the Council was entitled to refuse the requests under sections 15(1)(a), 15(1)(d) and 15(2) of the FOI 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.

Neill Dougan
Investigator