Mr X and Transport Infrastructure Ireland

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 15 April 2021
• Case Outcome: The Senior Investigator varied TII's decision. She annulled TII's refusal to grant access to certain records and directed their release. She found that TII was justified in effectively relying on section 15(1)(a) in relation to certain further records on the basis that it has taken all reasonable steps to ascertain their whereabouts.
• Court: Information Commission
• Respondent: Transport Infrastructure Ireland
• Record Number: OIC-60202-R1V9R9

Whether TII was justified in refusing access to records concerning the selection of the preferred Metrolink route

15 April 2021

Background

The applicant’s FOI request of 10 July 2019 sought access to various records concerning the preferred route for the Metrolink, particularly the proposed station at Tara Street. The request was broken into six bullet points, the first of which sought access to records supporting the analysis for the discounting of various other routes (item 1). In its decision of 27 August 2019, TII refused to grant access to the records covered by item 1 under section 29 of the FOI Act (deliberative process). TII referred the applicant to publicly available information in its response to other parts of his request, including a document named Appendix M of Metrolink: Preferred Route Design Development Report, which is dated March 2019 (Appendix M).

On 3 October 2019, the applicant sought an internal review, which clearly concerned the withheld item 1 records and also argued that TII should hold further records covered by that part of the request. However, the applicant also appeared to refer to TII’s response to a query he had made about another part of his request. TII’s internal review decision of 13 November 2019 noted its understanding that the internal review application was confined to its decision on item 1. It affirmed its application of section 29 to the withheld item 1 records. It did not address the applicant’s contention that it should hold further records covered by item 1.

On 9 December 2019, the applicant applied to this Office for a review of TII’s decision. At the outset of the review, TII confirmed that it had identified three records as covered by item 1, as detailed below. I apologise for the delays that arose. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TII and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of the Review

As explained to the applicant, this review is confined to whether TII’s decision on the three item 1 records was justified under the provisions of the FOI Act. The three records are: (i) a document called “Tara Street Station Mined and Other Designed Options” (ii) a Jacobs IDOM report regarding Tara Street Station and (iii) an update to the Board of TII and the National Transport Authority (NTA). The review will also consider whether TII has taken all reasonable steps to locate records covered by item 1. This Office has no remit under the FOI Act to examine any other matter or to direct TII to clarify particular issues for the applicant.

Findings

Section 15(1)(a) – reasonable searches

Section 15(1)(a) provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records. Furthermore, this Office has no remit to examine, or make findings on, whether or not further records should have been created by TII or to examine its record management practices generally.

As stated above, TII’s internal review decision did not answer the applicant’s queries regarding whether or not further records existed relevant to his request. This effectively amounts to a refusal to grant access to further such records on the basis that they cannot be found after reasonable searches have been carried out for them (section 15(1)(a) of the FOI Act). TII says that its role in relation to the selection of the preferred location for Tara Street station was to facilitate deliberations within the project team and the approving authority i.e. the NTA. It says that its role involved making sure that the NTA officials were apprised of the status of the alignment options study, including the specific analysis underpinning the recommended option regarding Tara Street station in particular. It says that in so doing the only sort of records it would create are the Powerpoint presentations that comprise two of the withheld records. I note that the third record is a report prepared by a firm of consultant engineers.

TII says that records relating to matters the subject of the request are stored on its Project Sharefile system, MS Outlook and customer management system and that it has searched these databases. TII says that it, and the consultants for Metrolink, consulted their project design coordinators and project directors. It says that these and TII’s administrative officer searched emails, project management software and contract management software. TII says that it has not destroyed any documents and its position is that it holds no further records covered by item 1.

This Office’s Investigator put the above details to the applicant, who said that he had no comments to make. In the circumstances, I have no basis on which to further question the adequacy of TII’s searches for records. I find that TII was justified in effectively relying on section 15(1)(a) on the basis that it has taken all reasonable steps to ascertain the whereabouts of further item 1 records.

Section 29 – deliberative process

It is relevant that the release of records under FOI is accepted generally to be the same as publishing them to the world at large.

Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.

A deliberative process involves the consideration of various...