Whether the Council was justified in its decision to refuse access to planning information sought by the applicant under the provisions of section 15(2) of the FOI Act on the ground that the records containing the information sought are available for inspection by members of the public

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

Background

By letter dated 29 May 2017, the applicant asked the Council if a planning application was made for a golf course and car park on lands he identified by folio numbers. He stated that he was making the request under the FOI Act.

On 23 June 2017 the Council refused the request under section 15(2) of the FOI Act on the basis that the planning register is publicly available. It provided details of how and when the register could be accessed. On 3 July 2017 the applicant sought an internal review of the Council's decision, wherein he stated that he has no online access and that visiting the Council offices would cause him discomfort because of his ill-health. On 18 July 2017 the Council affirmed its decision under the FOI Act and offered to assist the applicant or his representative outside of the FOI process. On 28 July 2017, the applicant sought a review by this Office of the Council's decision.

During the course of the review, Mr Crowley of this Office contacted the applicant and explained the provisions of the FOI Act concerning access to publicly available planning information. With the applicant's consent, Mr Crowley forwarded copies of the folio maps provided by the applicant to the Council to determine if the application identified by the applicant had, in fact, been made. In response, the Council provided the applicant with details of the planning applications it could locate for the lands in question, one of which was for the construction of a golf course and parking spaces. Subsequently, the Council also agreed to provide the applicant with a copy of the particular planning application the applicant wished to see. Mr Crowley wrote to the applicant on 10 October 2017 inviting him to withdraw his application as, in his view, the Council had justified its decision under the provisions of the FOI Act. The applicant replied by letter dated 19 October 2017 indicating he remains dissatisfied with the assistance provided to him.

I have decided to conclude this review by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between the Council and the applicant and to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request for information about whether a planning application had been made for a golf course and car park at specified lands under section 15(2) of the FOI Act on the ground that the record is available for public inspection.

Analysis and Findings

It seems to me that the applicant is not fully aware of the rights afforded under the FOI Act and of the limitations of the Act. The Act provides for a right of access to records held by FOI bodies. However, if the record sought is available for inspection by members of the public, whether upon payment or free of charge, then the FOI body is entitled, under section 15(2)(a), to refuse requests for the record.

Furthermore, requests for information, as opposed to requests for records, are not valid requests under the Act, nor does the Act provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In this case, the applicant asked whether a planning application had been made for a golf course and car park on the lands in question. In response, the Council provided the applicant with details of the planning applications it could locate for the lands, including one for the construction of a golf course and parking spaces. Furthermore, it has undertaken to provide the applicant with a copy of that application and decision free of charge, notwithstanding that it normally charges for such copies. I understand that the full file can be made available for public inspection.

The role of this Office is confined to determining whether the decision taken by the Council on the applicant's request was in accordance with the provisions of the FOI Act. I am satisfied that it was. I find that the Council was justified in refusing the request under section 15(2)(a) on the ground that the records containing the information sought by the applicant are available for inspection by members of the public.

Finally, while I appreciate the difficulties the applicant has expressed in accessing the planning register due to his ill-health, it is also important to note that this Office has no role in examining the administrative actions of the Council in the performance of its functions. However, I would like to acknowledge the efforts undertaken by the Council to assist the applicant in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council.

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.

Stephen Rafferty
Senior Investigator