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From Office of the Information Commissioner (OIC)
Case number: OIC-141632-Z7X6Q6
Published on 5 December 2023
Whether the Council was justified in refusing the applicant’s request for information relating to the application of interest charges to certain planning permissions under sections 15(1)(a) and (c) of the FOI Act
5 December 2023
This case is related to a previous review conducted by this Office, reference OIC-139858. On 21 September 2023, this Office annulled the decision of the Council to charge a fee in that case for the search for and retrieval of information comprising the number of planning permissions granted before 13 February 2017 where interest charges had been applied to the financial contributions, and the value of interest charges collected in respect of the permissions concerned. In that case, the Council informed the applicant that interest charges had been applied in two cases to financial contributions concerning planning permission granted before 13 February 2017. On 19 May 2023, on foot of the information provided to him by the Council in the previous case, the applicant requested information as to whether interest charges had been applied to any of 15 specified planning permissions.
In a decision dated 9 June 2023, the Council refused the applicant’s request of 19 May 2023 under section 37 of the FOI Act. It informed the applicant that “access to the records concerned may involve the disclosure of personal information” and that the applicant had not provided written consent from the individuals to whom the information relates. In his request for an internal review, the applicant said he was not seeking personal information or information in respect of each individual file. He noted that, in response to his previous FOI request, the Council had stated that interest had been applied in two cases. He said, he simply wished to know how many, if any, of the 15 planning cases he cited had interest charges applied to them.
On 1 August 2023, the Council issued its internal review decision. It informed the applicant that in order to process the request, “it would be necessary to retrieve and examine the 15 planning records listed which would cause a substantial and unreasonable interference with or disruption of work as defined by section 15(1)(c) of the Act and with a possible inference that personal information may be included in the FOI request”. It said that if the applicant wished to re-submit an amended FOI request that “Carlow County Council select 5 planning file references at random from the list of 15 submitted to establish if any of the 5 records had interest applied”, it would examine five records at random. It said that this methodology would also “protect the identity of the individual planning applicants and ensure that there is no inference that personal information is included in the FOI request.” The Council also stated that “the purpose of the FOI Act is to assert the rights of members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy of individuals.” It said the “intent of the legislation is not to provide a platform for a commercial enterprise to trawl for information in the pursuit of financial reward.” It also informed the applicant that a search and retrieval fee would be required for this request pursuant to section 27 of the FOI Act. On 18 August 2023, the applicant applied to this Office for a review of the Council’s decision. The applicant argued that if proper records of account are being kept, there should be no need to access the planning files.
Following the acceptance by this Office of the application for review, the Council informed this Office of its view that the applicant “is being manifestly unreasonable in his requests in accordance with section 15(1)(g) of the Freedom of Information Act 2014”. In requesting submissions from the Council, the Investigating Officer asked it to clarify whether it wished to rely on section 15(1)(c) or (g) of the FOI Act, or on both provisions. In its submission, the Council stated that it wished to rely on section 15(1)(a) of the FOI Act on the basis that the information sought does not exist in the format requested, and that the request is a request for information as opposed to one for records and is not valid. The Council also made submissions that section 15(1)(c) applied. It did not provide a submission on section 15(1)(g) of the FOI Act. It also stated that on 23 August 2023, the applicant made a further request to the Council and that the response it issued in respect of that request rendered the current review redundant, though it is not apparent from its submission that it provided the applicant with the specific information he sought in this case.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the Council in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified, under section 15(1)(a) of the Act, in its decision to refuse the applicant’s request on the ground that the records sought do not exist or cannot be found and, under section 15(1)(c) of the Act, on the basis that the work involved in responding to the request would cause a substantial and unreasonable interference with the work of the Council.
Preliminary Matters
Before I address the substantive issues arising in this case, I wish to make the following preliminary comments.
Following the acceptance by this Office of the application for review, the FOI Officer stated his belief that this Office is deciding to accept the applicant’s “follow up queries” as a new FOI request “which is outside the remits of the FOI act 2014”. It said the Council responded to the applicant as an appeal “out of courtesy as there was no other way to do it”. I note, however, that on 9 June 2023, the Council informed the applicant that his “request dated 19th May 2023 is refused pursuant to section 37 of the Freedom of Information Act 2014”. Moreover, in its internal review decision of 1 August 2023, the Council informed the applicant of his right of review by this Office. On that basis, it seems to me that the Council treated the applicant’s correspondence of 19 May 2023 as an FOI request and that it processed the request under the FOI Act.
I also note the Council’s comments in this case as to the applicant’s motive for making his request. It is important to note that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Furthermore, the Council said that the applicant sought the financial records of individuals “with reference to specific planning applications without their authorisation which is not a valid request under the Act and in the opinion of Carlow County Council contrary to the provisions of the Data Protection Act”. For the avoidance of doubt, this review is not concerned with the Data Protection Act or the definition of personal data therein. In addition, it should be noted that Article 86 of the General Data Protection Regulation (GDPR) provides that personal data in official documents held by a public body may be disclosed by the body in accordance with Union or Member State law to which the body is subject, in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86 of the GDPR, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. Thus, the GDPR and the Data Protection Act both expressly provide for the disclosure of personal data in official documents.
The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue. While the Council has made general arguments about the protection of personal information relating to individual planning applicants, I do not consider it necessary to consider the application of section 37 of the Act in this case as the Council has not identified any specific personal information or relevant records containing any such information.
Essentially, the Council’s position appears to be that to process the request would cause a substantial and unreasonable interference with or disruption of work of the Council and/or that it is not a valid request under the FOI Act but a request for information as opposed to a request for records, which seeks the financial records of individuals without their authorisation, and that the information sought does not exist in the format requested.
Section 15(1)(c)
In its submissions to this Office, the Council said that to address the FOI request as it stands, it would be necessary to retrieve and examine the 15 Planning files from the offsite archives and cross reference each to the Council’s IT systems which would cause a substantial and unreasonable interference with or disruption of work as defined by section 15(1)(c) of the Act.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the body.
Section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the Council was justified in refusing the request under section 15(1)(c), I must first consider whether it complied with the provisions of section 15(4) before doing so.
In its submission to this Office, the Council said that in correspondence to the applicant on 1 August 2023, it afforded him the opportunity to amend the request pursuant to section 15(4) of the FOI Act. It said that it informed him if he re-submitted an amended request that “Carlow County Council select 5 planning file references at random from the list of 15 submitted to establish if any of the 5 records had interest applied”, that it would do so. It said that this methodology would “protect the identity of the individual planning applicants and ensure that there is no inference that personal data is included in the FOI request.”
Having reviewed the Council’s submission, it appears that it relied on section 15(1)(c) of the Act after it issued its original decision to refuse the request under section 37 of the Act. No evidence has been provided to this Office to show that the applicant was offered assistance in accordance with section 15(4) prior to issuing its internal review decision on 1 August 2023. The provisions of section 15(4) of the Act are clear. An FOI body shall not refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under section 15(1)(c). The Council did not do so in this case before making its decision. Therefore, I find that the Council did not comply with the provisions of section 15(4) in this case. My finding that the Council has not complied with section 15(4) is, of itself, sufficient for me to find that the Council was not justified in refusing the applicant’s request under section 15(1)(c) of the Act, and I find accordingly.
However, that is not the end of the matter, as in its submissions to this Office the Council stated that it also wished to rely on section 15(1)(a) of the FOI Act.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office 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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In its submission to this Office, the Council said that it was relying on section 15(1)(a) to refuse the request, as the information sought did not exist in the format requested. It said that requests for information, as opposed to requests for records, are not valid requests under the FOI Act.
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. 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. It appears to me that the Council is effectively arguing that it is not required to create a record to address the applicant’s FOI request if none exists.
As noted above, the Council said that in order to address the FOI request as it stands, “it would be necessary to retrieve and examine the 15 Planning files and cross reference each to the Councils IT systems”. On this basis alone it seems to me that records exist which may address the applicant’s request. I also note that in its internal review decision, the Council suggested to the applicant that he refine his request to establish from a sample search of five applications “if any of the 5 records had interest applied.” I note too, that in its decision on the applicant’s previous FOI request, the Council informed him there are two cases where interest was charged. As such, it appears that in dealing with the applicant’s previous request the Council has already identified the two relevant cases. In his request for an internal review of the Council’s decision in this case the applicant said he simply wished to know how many, if any, of the 15 planning cases he cited had interest charges applied to them. In the circumstances, it appears that the Council could cross-reference the two cases it identified in the applicant’s previous FOI request against the 15 cases cited by the applicant to establish if interest was applied in any of the 15 cases.
During the course of the review, the Investigating Officer queried why the Council would need to retrieve and examine the 15 Planning files as it outlined, in circumstances where it appears that it has already carried out the work and identified the two cases to which interest charges were applied in its decision on the applicant’s previous request. I understand from the Council’s response that it interpreted the applicant’s follow up request of 19 May 2023 to be a challenge to the Council’s previous decision, as he stated that if interest has been charged on even two of the 15 applications that he referred to, “then the information supplied in the previous FOI request is incorrect.” It said that the applicant sought an examination of the 15 files and that it would therefore be necessary to retrieve same from the Council’s archives.
Given the circumstances outlined above, I am not satisfied that the Council was justified in refusing the request under section 15(1)(a) of the Act. While the Council is correct in its assertion that requests for information, as opposed to requests for records, are not valid requests under the FOI Act, the exception to this is where the FOI body holds a record containing the information or the answer sought. I accept that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. However, the Council has not in my view demonstrated that it has undertaken all reasonable steps to establish whether in fact it holds a record(s) containing the information sought or whether it can extract the information from its IT systems. To the contrary, in my view the Council’s submissions in this case and its response to the applicant’s previous case suggest otherwise.
However, for the benefit of the applicant, I wish to note that if an FOI body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist.
In the circumstances of this case, I am simply not in a position to find that the Council has undertaken all reasonable steps to locate the records sought. Accordingly, I find that the Council was not justified in refusing the request under section 15(1)(a) of the FOI Act.
Having considered the matter carefully, I consider the appropriate course of action is to annul the Council’s decision under sections 15(1)(a) and 15(1)(c) and to direct it to undertake a fresh decision in respect of the applicant's request, in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if necessary.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision and direct it to undertake a fresh decision-making process in relation to the applicant’s FOI request.
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.
Richard Crowley, Investigator