Mr X and Clare County Council

• Judge: Elizabeth Dolan, Senior Investigator
• Judgment Date: 15 July 2015
• Case Outcome: The Senior Investigator found that the Council was justified in its decision to refuse access to the records under sections 30(1)(a) and 31(1)(a) of the FOI Act. She affirmed the decision of the Council.
• Record Number: 150081
• Court: Information Commission
• Respondent: Clare County Council

Whether the Council was justified in its decision to refuse access to records between a local Community Group and the Council relating to the installation of a crash barrier at O'Briensbridge under section 30(1)(a) of the FOI Act on the basis that release of the records would prejudice an ongoing investigation and under section 31(1)(a) of the Act on the basis that the records relate to legal advice

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

Background

On 9 January 2015 the applicant submitted an FOI request to the Council for any correspondence shared between the Council and O'Briensbridge Community Group relating to the installation of a crash safety barrier on the ramp leading up to the bridge at O'Briensbridge, Co. Clare during November and December 2014. On 6 February 2015 the Council refused the applicant's request under section 15(1)(a) of the FOI Act, on the basis that no records within the scope of the applicant's request existed or could be found after all reasonable steps to ascertain their whereabouts have been taken.

The applicant sought an internal review of the Council's decision on 18 February 2015, as he was of the opinion that correspondence was in fact exchanged by the Council and O'Briensbridge Community Group in the time period specified. On 10 March 2015 the Council issued its internal review decision. The internal review decision of the Council identified 6 records within the scope of the applicant's request. Records numbered 1 and 3 were released to the applicant. The applicant was refused access to records numbered 2, 4 and 5 under section 30(1)(a) of the Act, and record number 6 under section 31(1)(a) of the Act.

On 16 March 2015 the applicant sought a review by this Office of the Council's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 11 June 2015 setting out his initial views on the Council's position and informing him that the Council had changed the basis under which it considered record number 5 to be exempt from release from section 30(1)(a) to section 31(1)(a) of the FOI Act. Mr Foley informed the applicant that in his view, the Council was justified in its decision to refuse access to the records, and invited the applicant to make further submissions if he wished. While the applicant, in a telephone call on 15 June 2015, indicated that he disagreed with Mr Foley's view, no further submission has been received from him to date. I therefore consider that this review should be brought to a close by the issue of a binding decision.

In conducting this review, I have had regard to communications between the Council and the applicant. I have also had regard to communications between this Office and the applicant, and to communications between this Office and the Council. Finally, I have had regard to the contents of the records identified by the Council and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Council was justified in refusing access to records numbered 2 and 4 under section 30(1)(a) of the FOI Act, and refusing access to records numbered 5 and 6 under section 31(1)(a) of the FOI Act.

Preliminary Matters

At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally. Furthermore, it should also be noted that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]". As this review is considered to be de novo, the Council is entitled to argue...