Whether the Council was justified in refusing access to further records relating to the applicant’s breeding and keeping of greyhounds under section 15(1)(a) and section 15(1)(i) of the FOI Act

11 November 2020

Background

The applicant in this case has concerns arising from welfare notices that were served on him by the Irish Greyhound Board (the IGB) in connection with his rearing and breeding of greyhounds and in respect of his subsequent dealings with various bodies, including the Council, on the matter. On 30 October 2018, he made a request to the Council for all information about him in relation to rearing and breeding of greyhounds at two specified addresses, to include all privileged and third party information. He also sought all correspondence from two members of the Irish Society for the Prevention of Cruelty to Animals (ISPCA) and minutes meetings held at a specified location.

On 30 November 2018, the Council refused the majority of the request under section 15(1)(i) of the Act on the ground that the records sought were previously released to him in 2018 on foot of a previous request (ref. FOI 75/17). It refused access to the meeting minutes under section 15(1)(a) on the ground that no relevant records exist. The applicant sought an internal review of the Council’s decision, following which the Council affirmed its original decision. In a letter received on 8 January 2020, the applicant sought a review by this Office of the Council’s decision.

During the course of this review, the Council provided submissions in relation to the searches undertaken for relevant records and details of the records previously provided to the applicant. Ms Whelan of this Office provided a summary of those submissions to the applicant, and invited him to make his own submissions. The applicant made further submissions.

I have now completed my review of the Council's decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

It is apparent from the applicant’s correspondence with this Office that he is of the opinion that other relevant records should exist, apart from those previously released to him. Accordingly, this review is concerned solely with whether the Council was justified in its decision to refuse the applicant’s request for records relating to his breeding and keeping of greyhounds under sections 15(1)(a) and 15(1)(i) of the FOI Act.

Preliminary Matters

In light of comments made by the applicant in his correspondence with this Office during the course of this review, I consider it necessary to address a number of preliminary matters.

First, the applicant has made a number of allegations and complaints concerning the manner of his treatment. As has previously been explained to the applicant, this Office has no remit to investigate complaints concerning the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the Council has dealt with him, this Office has no role in examining the appropriateness of those actions. As set out above, our role is limited to determining whether the Council was justified in refusing his request on the grounds cited.

Second, in correspondence with this Office and the Council, the applicant requested information and answers to numerous questions. It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Analysis and Findings

Section 15(1)(i)
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the records sought were previously released and are available to the requester. In essence it ensures that the FOI body does not have to process repeat requests for the same records. For the section to apply, I would expect the public body to be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.

Having considered the various submissions made by the applicant during the review, it seems to me that at no stage during the review process has he identified any specific records the Council says it has released to him that were not in fact released or that are not available to him. Instead, it appears his primary concern is that is that he did not receive all relevant records held by the Council.

Accordingly, in my view it is neither practical nor necessary for me to attempt to identify each and every record released to the applicant at each stage of the engagements between the parties to determine if any of those records were not, in fact, released or if any of those records are not available to the applicant. I accept the Council’s assertions that it has released all the records it says it released.

In its submissions to this Office, the Council said that since June 2016, the applicant has lodged five FOI requests and one Data Access request relating to the same matter. It said that in response to the applicant’s four previous FOI requests and one Data Access request, it had identified all records relating to the applicant and has released the vast majority of the information it holds relating to the applicant.

The Council explained that in response to a previous FOI request 75/17, it had redacted information held in 11 records provided to the applicant. I note from the Council’s decision in relation to that request, that it relied on section 35 of the FOI Act in redacting this information.

Having regard to the fact that the applicant sought all records, including privileged and third party information, and the Council’s explanations that it made redactions to records previously released to the applicant, I cannot find that the Council has previously released all information falling under the scope of the applicant’s request. It is clear that the information redacted in relation to FOI request 75/17 falls under the scope of this request and that the applicant has not previously sought a review by this Office in relation to the redacted information.

Accordingly, I find that the decision of the Council in this case was not justified under section 15(1)(i) of the FOI Act. However, I do not consider it appropriate to simply direct the release of the information concerned. Indeed, I note the Council's previous decision to redact the information. Instead, I find that the most appropriate course of action is to annul the Council’s decision in this respect and to direct it to conduct a new decision-making process on the redacted information. The normal rights of internal review and appeal to this Office will apply to the new decision. 

Section 15(1)(a)

As explained above, the applicant’s primary concern is that is that he did not receive all relevant records held by the Council. The question remaining, therefore, is whether the Council holds other relevant records, apart from those already released and those identified as having been redacted, that it did not release. The Council’s position is that it does not.

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 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.

In its submissions to this Office, the Council provided details of searches conducted in an effort to locate all relevant records coming within the scope of the applicant’s request. During the course of this review, Ms Whelan of this Office provided the applicant with details of those searches. As such, I do not propose to repeat them in full here. In short, the Council explained that it holds files relating to the applicant in its Environment Section and the Office of the County Vet and that it also holds a file on the applicant relating to a different matter in its Planning Section. It said that since June 2016, the applicant has lodged five FOI requests and one Data Access request relating to the same matter. It said both files in the Environment Section and the Office of the County Vet were searched in response to each of the applicant’s requests. It said it conducted searches of the hard copy files held in relation to the applicant as well as the Environment Section’s drive on the Council’s computer network. The Council explained that all correspondence relating to the matter is printed and placed on the applicant’s hard copy files.

During the course of this review, the applicant identified 11 particular categories of records he was seeking. Those records included email correspondence between the Council, the County Vet and a member of the IGB and records of inspections and welfare notices. The Council, in response, reissued a number of records to the applicant which it stated comprised the 10 of the 11 categories of records sought.

It stated that it could not locate one record, which the applicant described as an email stating that the then County Vet was willing to travel to any court at any time in relation to the applicant’s case. It explained that as the then County Vet no longer worked for the Council, it did not have access to the relevant email account and could not search for the record in question. I note, however, that the applicant already has a copy of that email which he received in response to another FOI request he lodged with a different body.

On the matter of the minutes of meetings held at specified locations, the Council explained that it had consulted with staff in the Environment Section to ascertain whether such meetings had taken place. The Council stated that staff had no recollection of such meetings and following searches could find no minutes of meetings coming within the scope of the applicant’s request. It is the Council’s position that no such minutes exist.

On the matter of correspondence from members of the ISPCA, I note that some correspondence from one of the named members was released to the applicant in response to a previous request. As the Council previously explained, correspondence relating to the applicant is printed and held on his hard copy files. The Council’s position is that all correspondence it holds has previously been released to the applicant.

The applicant suggested that records relating to an inspection carried out on his property on 1 August 2014 were being withheld from him. He named a staff member in the Department of Agriculture, Food and the Marine (the Department) who was involved in the inspection. I note that during the course of this review, the Council reissued the notes of that inspection prepared by the then County Vet. The Council’s position is that any records created by the Department in relation to the matter would be held by the Department, and that it has released all records held by it in relation to that inspection.

Having examined the applicant's submissions, it seems to me that he is, in essence, seeking to compel the Council to provide records which will support or justify the manner in which the Council engaged with him in relation to his dispute, regardless of whether or not such records are actually held by the Council. The FOI Act provides for a right of access held by public bodies. If the record sought does not exist that is the end of the matter.

In this case, the applicant has not presented evidence to support his view that the Council holds further records falling under the scope of his request. In the circumstances, having regard to the Council’s explanation of the records that have been released to date and of the searches it undertook to look for additional relevant records, I am satisfied that all reasonable steps have now been taken by the Council to search for further records. I find, therefore, that the Council was justified in refusing the request for additional relevant records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case. I affirm its decision to refuse access to additional records falling under the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found after all reasonable steps have been taken to locate them. I direct the Council to conduct a new decision-making process on the redactions made to the 11 records provided to the applicant in response to a previous FOI request. 

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