Ms X and the Kildare County Council (FOI Act 2014)

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 23 January 2018
• Case Outcome: The Senior Investigator affirmed the decision of the Council. She found that the Council was justified in its decision to refuse access to records under section 15(1)(a) of the FOI Act, on the basis that they did not exist or cannot be found. She affirmed the Council's decision to refuse access to the remaining records under section 37(1) of the FOI Act, since the withheld information contains the personal information of individuals other than the applicant.
• Court: Information Commission
• Record Number: 170464
• Respondent: Kildare County Council

Whether the Council was justified in refusing to release records under section 37(1) and section 15(1)(a) relating to landlord and tenancy arrangements

24/01/2018

Background

On 13 October 2016, the applicant, who is a landlord, submitted an FOI request to the Council for access to records concerning her from 1 June 2012 to the date of the request. The Council issued a decision on 2 November 2016 and granted access to certain records in a 'Landlord File' but refused access to other records held on a 'Tenant File' on the basis of section 37 (Personal information) of the FOI Act. The applicant made a request for an internal review on 3 November 2016 but did not receive a decision from the Council within the statutory timeframe. Following communications with this Office, the Council provided the applicant with its effective position on 21 September 2017. The Council granted access to additional records and affirmed its decision to refuse access to others on the basis of section 37(1) of the Act. On 29 September 2017, this Office received an application for a review from the applicant.

During the course of this review, the Council released additional records to the applicant. In reply to a query from this Office, it stated it had refused access to other records on the basis of section 15(1)(a), i.e. that these records were not held. The applicant was advised by this Office of the decision of the Council in relation to section 15(1)(a). A submission was not received from the applicant on the matter.

In correspondence to this Office the Council acknowledged that the internal review decision was late. The Council said that it had assigned additional resources to the management of matters related to Freedom of Information.

In conducting this review I have had regard to the submissions of the Council, and to correspondence between the applicant, the Council and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Scope of Review

This review is solely concerned with whether the decision of the Council to refuse the applicant's request under sections 15(1)(a) and 37(1) of the FOI Act was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in...