Mr X and Wicklow County Council

CourtInformation Commission
JudgeSenior Investigator
Judgment Date19 May 2021
Case OutcomeThe Senior Investigator varied the Council's decision. She found that the Council was not justified in relying on section 15(1)(a) (reasonable searches). She annulled this part of its decision and directed the Council to make a fresh decision on the matter. She found that the Council was not justified in relying on section 30(1)(a) (negotiations of an FOI body). She found that sections 36(1)(b) (commercial sensitivity) and 37(1) (personal information) apply to most of the details at issue and that the public interest weighs in favour of refusing access to the information concerned. She directed the release of the remaining parts of the records.
RespondentWicklow County Council
Record NumberOIC-95426-K1G3S2
Whether the Council was justified in refusing access to certain records concerning a fire at the applicant’s address (a Council property) under various provisions of the FOI Act and whether its searches for such records were reasonable

19 May 2021

Background

The applicant’s FOI request of 18 May 2020 sought access to all documentation held by the Council in relation to a fire at his address (which is a Council property) on a particular date. The applicant said that the records should include inspection reports, photographs showing the damage and repairs required, reports concerning the cause of the fire, repairs estimates and invoices, insurance claims made by the Council (and attached documentation) and material concerning the Council’s decisions in respect of carrying out the repairs. The Council’s decision of 16 June 2020 covered 17 records, eleven of which it released in full and in part. It refused access to the remainder under sections 30(1)(a) (investigations carried out by an FOI body), 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to negotiations) and 37(1) (personal information) of the FOI Act.

The applicant sought an internal review on 18 June 2020 in relation to the Council’s refusal of some of the fully and partially withheld records and in relation to the adequacy of its searches for records covered by his request generally. The Council’s internal review decision of 7 July 2020 affirmed its decision on the entirety of the request. It did not address the applicant’s contention that further records should exist, which effectively amounts to a decision that its searches were reasonable (section 15(1)(a) of the FOI Act). On 13 August 2020, the applicant applied to this Office for a review of the Council’s decision. He sought a review of the Council’s searches for records covered by his request. He also sought a review of its refusal of the same records that he had listed in his internal review application.

The Council now says that it applied section 37 to parts of record 2 in error and is happy for it to be released. It has found a record of attendance at the fire that it says was used to process payroll for the firefighters. Although the Council believes that this attendance record is not covered by the request, it is willing to release it subject to redaction of the firefighters’ names. It has also identified two further records that it accepts are covered by the request but which it is not willing to release. I understand that the Council considers these records to be exempt under the provisions already relied on in this case. One of the records is an invoice that the Council says it paid by credit card on 7 May 2020 but which it only received in hardcopy form on 12 May 2020. The other record consists of an email string dated 26 March 2020 (comprised of two emails between the Council and its property claims consultant (the consultant) at 12:06 and 13:26). One of the emails in the string has a number of attachments.

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 correspondence between this Office, the Council, third parties whose interests may be affected by my decision and the applicant, as well as the contents of the records at issue and the provisions of the FOI Act. I note that no reply has been received from the applicant further to this Office’s notification to him of various material issues relevant to both the scope of the review and my decision on it.

Scope of the Review

As noted above, the Council is willing to release the attendance record subject to the redaction of the firefighters’ names. The applicant has not indicated that he is seeking access to the names concerned. Therefore, I see no need to refer further to either this record, or record 2, which as set out above the Council says it is willing to release.

The Council’s submission refers generally to third party information in the records not subject to the request. While the records indeed contain information relating to third parties, I am satisfied that the relevant details are covered by the request. However, I cannot carry out a review on aspects of an FOI decision that an applicant has not sought to be reviewed. The applicant sought a review of the Council’s decision to partially withhold records 10 and 11 and to withhold records 13-17 in full. He did not refer to the Council’s refusal of record 12 and as a result, I have no jurisdiction to consider the Council’s decision on this record. Neither can my review extend to any invoices received or other records created by the Council after the FOI request was received. As has been explained to the applicant, it is open to him to make a fresh FOI request for such records.

Having regard to the above, the scope of this review is confined to whether the Council’s decision to withhold parts of records 10 and 11 and records 13-17 in full was justified under the FOI Act. It will also include the invoice received by the Council on 12 May 2020 and the emails of 26 March 2020. The attachments to one of the emails of 26 March 2020 consist of further copies of records 13, 14, 15 and 16. Also attached is a cover email to record 15, which was not amongst the 17 records initially considered by the Council, and so I will include it in my review.

Preliminary matters

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the a withheld record for the purpose of granting access to those particular sentences or paragraphs.

It is also noted that, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.”

Findings – reasonableness of searches (section 15(1)(a))

It is the Council’s position that, at this point, it has taken reasonable steps to look for records covered by the applicant’s request and also that certain of the requested records do not exist. 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 the Commissioner in a case involving section 15(1)(a) is to decide whether or not 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 ascertain their whereabouts have been taken. 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 FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. However, this Office has no remit to examine, or make findings on, whether or not the Council should have created further records, the level of detail in records that were created, or the Council’s record management practices generally. Neither has this Office any role in examining how the Council carried out its functions in dealing with matters arising from the fire.

The Council says that a particular Municipal District (the MD) was responsible for all matters relating to the fire, including any insurance claim. It says that the MD’s Executive Engineer confirms that he assessed the works required to be carried out and met on-site with consultant, relevant sub-contractors and Council employees. The Council’s position is that the Engineer and the consultant were able to view the damage first-hand at this on-site meeting and that no photos of the damage were needed or taken. It says that, further to the relevant procurement procedures, the sub-contractors provided estimates for their work on...

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