Case 020227. Application for access to records - whether pre-commencement records concerning a piece of land relate to personal information about the requesters - section 6(5)(b) - whether post-commencement records relating to the land contain personal information of other parties - section 28(1) - whether public interest warrants release of that information - section 28(5).

Case Summary

Facts

The requesters are directors of a company, ABC Limited. They initially claimed that they were owners, by way of adverse possession, of a piece of land in Clare. The use of the land had been dedicated to the Council by its registered owners (the third parties) in 1968. The requesters sought from the Council all records, dating from 1965, relating to the piece of land. At the time of the request, the requesters were seeking to have the land registered in either their own names, or in that of their company. The Council refused the bulk of the records, which were pre-commencement, on the grounds that no right of access arose to the records under section 6(5)(b) of the FOI Act. The Council refused all the post-commencement records on the grounds that they contained personal information about parties other than the requesters, and were exempt under section 28(1) of the FOI Act. The requesters appealed to the Information Commissioner for a review of the Council's decision.

Decision

In relation to the pre-commencement records, the Commissioner relied on the judgement of O'Neill J. in EH and the Information Commissioner. He found that the pre-commencement records concerned contacts between the third parties and the Council, relating to the acquisition of the lands in question. He noted that only a small number of records referred to the requesters' company and, of those, only one made any direct reference to the requesters. The Commissioner found that in order to conclude that the records contained information "relating to" the property of the requesters, there must be no doubt that they were the registered owners of the property at that point in time. He noted that the information related to the property of the third parties and found that the records related to personal information of those third parties, as opposed to personal information of the requesters. He found that no right of access arose under section 6(5)(b) of the FOI Act.

During the review, the Council told the Commissioner that the requesters were no longer claiming an interest in the lands. The Commissioner went on to consider whether a right of access to the pre-commencement records would have arisen under section 6(5)(b) if they had continued to claim ownership of the land. Firstly, he found that, notwithstanding the outcome of any application that may have been made by them to have the land registered in their own names, it was not demonstrated to him at the time of making his decision, that the records contained "information relating to the property of the individual[s]" making the request. He said he would have found, therefore, that no right of access arose under section 6(5)(b). Secondly, if they had been successful in seeking to have the land registered in the name of their company at the time of making his decision, he would have considered the records to have related to the property of the company concerned, as opposed to the property of the requesters. He commented that it appeared the sole reference to the requesters, in one of the records, was in their capacity as directors of ABC Limited, and that he would not have been justified in finding that the records concerned the property of either requester as "identifiable individuals". He found that there would not have been a right of access to the records under section 6(5)(b) in this scenario.

The remaining records, all of which were post-commencement, related to ongoing correspondence between the Council and the third parties. The requesters had put forward the argument that the public was entitled to information concerning the expenditure of funds by public bodies in the acquisition of lands to be used in the carrying out of its functions. The Commissioner commented that it was of great public interest that the public be made aware of how public bodies use public monies, or assets, in the furtherance of their public duties. However, he noted that the requesters were in possession of a land acquisition agreement dated 1968, relating to the land in question, which inter alia detailed the compensation which the third parties were to receive for their agreement to dedicate the use of the land to the Council. He found that the requesters were already fully aware of the details of the transactions concerned and release of the information would not serve to enhance their understanding, or that of the public, as to the means by which the Council acquired the land. He found that the public interest did not warrant release of these records.

Date of Decision: 10.07.2002

Our Reference: 020227

10.07.2002

Mr Y & Associates Solicitors

Dear Sir,

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act), on behalf of your clients named above, for a review of the decision of Clare County Council (the Council) on your request of 31 August 2001.

Background

You made a request to the Council on 31 August 2001 for access to:

1. Copies of all contracts or agreements made since 1965 between Clare County Council and Mr D and/or Mrs D relating to lands at [place name].
2. Copies of all correspondence since 1965 between Clare County Council and Mr D and/or Mrs D relating to lands at [place name].
3. Copies of all memoranda, attendances and any other materials of any kind whatsoever relating to all and any matters since 1965 between Clare County Council and Mr D and/or Mrs D in respect of lands at [place name].

On 28 September 2001, the Council refused your request on the grounds (a) that the FOI Act only applies to records created after 21 October 1998 (b) that the records contain information relating to the property of identifiable individuals and thus constitutes personal information and (c) that the records contain matter relating to ongoing negotiations between the Council and other parties. The Council upheld its decision following your request for internal review. On 24 April 2002, you made your application to this Office.

I have now decided to conclude my review and issue a formal decision. In so doing, I have taken into account your application to this Office along with the submission of the Council, dated 14 May 2002. I have considered the details of a letter, dated 3 May 2002, sent to you by Mr Fintan Butler, Senior Investigator, summarising the contents of a telephone call in which Mr Butler outlined to you his preliminary views on the merits of your application. I note that you have not sent any further submission in response to that letter. Finally, I have had regard to the records themselves, copies of which were supplied to my Office for inspection, and to the provisions of the FOI Act generally.

Scope of Review

Although your original request was quite broad, in that it asked for records of contacts etc. between the Council and Mr and Mrs D in respect of "lands at [place name]", I note from your application to this Office that you referred to the records being sought by your clients as those relating to the property in respect of which your clients are claiming ownership by way of adverse possession. I also understand that, in the course of your conversation with Mr Butler, you indicated this to be the case. Thus, I have proceeded on the basis that your clients are seeking access to contacts between the Council and Mr and Mrs D in respect of this piece of property only. The Council recently told me you had sent it a letter saying that your clients now accept that they have no claim on this property.

The Council has supplied me with copies of 78 records, which may be divided into two groups. Records 1 to 70 inclusive were created before the commencement date of the FOI Act, which for local authorities was 21 October 1998 (termed "pre-commencement records"). The second group consists of records 71 to 78 which were created after 21 October 1998 (termed "post-commencement records"). The issue for decision is whether these records, or some of them, should be provided to your clients under the FOI Act.

Findings

Before dealing with the exemptions claimed by the Board, I wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of some of the records at issue is somewhat limited.

Section 6(5) - Pre-Commencement Records - Records 1 - 70

Access to pre-commencement records is limited to two scenarios. One scenario is where access to such records is necessary or expedient in order to understand a record created after 21 October 1998 [section 6(5)(a) of the FOI Act]. You do not contend that there exists any record, created after 21 October 1998, which cannot be understood without reference to these earlier records and so a right of access does not arise under section 6(5)(a) of the FOI Act. The other scenario is where the records "relate to personal information" about the person seeking access to the records [section 6(5)(b) of the FOI Act].

On 21 December 2001, in his judgment in the case EH and the Information Commissioner, O'Neill J. considered the interpretation of the phrase "relate to personal information", as contained in section 6(5)(b) of the FOI Act. He concluded that the test to be applied in determining whether or not a record "relates to" a requester is

"whether there is a sufficiently substantial link between the requester's personal information (as defined in the act) and the record in question"

and said it was clear

"from the use of the phrase "relates to" that a document need not itself contain "personal information" about the requester".

He said that:

" If the record contains an express reference to the requester, be it however insubstantial or trivial then clearly it 'relates to personal information', about the requester. Here one would have in mind records such as letters which contained no personal information but are about or refer to the requester, such as holding type letters or pro forma or replies. Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same.".

In this case, the majority of records concern contacts between Mr and Mrs D and the Council relating to the acquisition of lands in question. Only a small number of the records refer to your clients' company and of these, only one record makes any reference directly to your clients. Indeed, it seems to me that the sole reference to your clients in this record is in their capacity as directors of ABC Ltd. However, the fact that a record does not contain a direct reference to your clients (in their personal capacities) does not rule out the possibility that it may, nevertheless, relate to personal information about them. Therefore, it must firstly be established, even if the vast majority of the records do not refer to your clients, whether there exists a "substantial link" between the records and personal information about your clients. If this could be demonstrated, it could be said that the records "relate to personal information" about your clients and they would be potentially accessible under section 6(5)(b) of the FOI Act.

Personal information is defined by section 2 of the FOI Act as being:

"information about an identifiable individual that

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or,
(b) is held by a public body on the understanding that it would be treated by it as confidential",

and includes "information relating to property of the individual".

From your application and subsequent conversation with Mr Butler, I understood it to be your position, until recently, that your clients contended that they were "the owners of the property [to which the records relate] by way of adverse possession since 1970", and that their interest in the property had "never been contested or denied over a period in excess of 30 years". I also understood that your clients were seeking to have the property registered in either their own names (or that of their company).

It seems to me that, in order to conclude that the records contain information "relating to" the property of your clients, there must be no doubt that they are the registered owners of the property at this point in time. Your clients now apparently accept that they do not have any claim to the land, the registered owners of which I understand to be Mr and Mrs D. (At this point, it is relevant to state that there would be a significant difference between a situation where the land would be owned by your clients in their personal capacities, as opposed to being owned by the company of which they are directors. I will deal with these issues below). In any event, all of the records relate to the property of Mr and Mrs D, and I am satisfied that the records relate to personal information about Mr and Mrs D, as opposed to relating to personal information about your clients.

As it cannot be said that the records relate to your clients' property, and while your clients may indeed have a substantial personal interest in gaining access to the records in question, I consider that there is no substantial link between the records and "information relating to [any] property" (i.e. personal information) of your clients. Therefore I find that, in relation to records 1 to 70 inclusive, no right of access arises under section 6(5)(b) of the FOI Act. For the sake of completeness, however, and because you have not confirmed to this Office that your clients are no longer claiming an interest in the lands in question, I will outline my analysis of whether or not your clients would have been entitled to access to the records in question if they were still contending that they were the owners of the property by way of adverse possession and were seeking to have the land registered (i) either in their own names or (ii) in that of ABC Ltd.

(i) Your clients maintain that they are the owners of the land by way of adverse possession and they are seeking to have the land registered in their own names.
As outlined above, in order to conclude that the records contain information "relating to" the property of your clients, there must be no doubt that they are the registered owners of the property at this point in time. As matters stand, I understand the land in question is registered to parties other than your clients. Notwithstanding the outcome of any application that may have been made by your clients to have the land registered in their individual names, it has not been demonstrated to me that, at this time, the records contain "information relating to the property of the individual[s]" making the request. Therefore, I would find in this situation that no right of access arises to records 1 to 70 inclusive under section 6(5)(b) of the FOI Act .

(ii) Your clients maintain that they are the owners of the land by way of adverse possession and they are seeking to have the land registered in the name of ABC Ltd.
Again, as the land is not registered in the name of the company, I would have found that access to the records does not arise under section 6(5)(b) of the FOI Act. Furthermore, even if your clients had succeeded in having the property registered in the name of ABC Ltd, I would consider that the records would relate to the property of the company concerned, as opposed to the property of your clients. As I said, in Case No. 98022 (Mr Tom Cronin and the Director of Consumer Affairs);

" A company can only act through the agency of natural persons, generally its directors or employees. As a consequence it is almost inevitable that in a record referring to matters about a company or its business, references will also be made to such persons. In such cases it is necessary to decide whether the information in the record is about that individual or about the company."

As I noted, one of the records refers to your clients but, it seems to me, this reference was in their capacity as directors of ABC Ltd, in the context of their proposal for a building on behalf of ABC Ltd. As the records would relate to the property of the company of which your clients are directors, I would not be justified in finding that, in this hypothetical situation, the records would concern the property of either of your clients as "identifiable individuals". In this scenario, I would find that access to the pre-commencement records would not arise under section 6(5)(b), even in the event that the land was registered to ABC Ltd.

Because I have found that you have no right of access to these pre-commencement records, there is no need for me to consider the application of any other provisions of the FOI Act to the records in question.

Post - Commencement Records - No.s 71 - 77

As outlined, records 71 to 77 inclusive were created after 21 October 1998. The Council has withheld these records on the grounds of sections 21 (which protects the functions and negotiations of public bodies), section 28 (which protects personal information of third parties) and section 23 of the FOI Act (which protects the interests of law enforcement and public safety). The records in question can be summarised as relating to contacts between the Council and other parties in relation to the property in question as well as in relation to another piece of property. Records 71 and 71(a) refer solely to the other piece of property. As I explained, I do not consider your original request to encompass such records and thus I find that records 71 and 71(a) are not covered by your request. The remaining records contain information about the property in question as well as, in a number of instances, information regarding the other piece of property.

As outlined above, your clients apparently now accept that they do not have a claim on the land in question. Even if your clients were still claiming ownership by way of "adverse possession", the records in question concern the property in question and relate to the property of Mr and Mrs D, the land's registered owners. Thus, the records contain the personal information of Mr and Mrs D. In addition, the records regarding the contacts between the Council and third parties, in relation to the other piece of land, concern the nature of the title of those third parties to the property in question.

Section 28 of the FOI Act provides that a request for a record shall be refused if such release "would involve the disclosure of personal information". It seems to me that disclosing the nature of the contacts between Mr and Mrs D and the Council, in relation to the lands in question, would result in the disclosure of personal information about Mr and Mrs D. Therefore, it seems to me that section 28(1) applies to the records 72, 73, 74, 75, 76 and 77.

There are a number of exceptions to section 28(1) contained in the FOI Act. The only exception that I consider to be applicable in this case is section 28(5)(a) which provides that the records may be released if, on balance, "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". I note that you say there are issues of public interest involved in your clients' plans to develop the property, and that "all parties should come clean in respect of any negotiations or procedures that might be taking place in relation to any aspect of this property". You also say that the public is entitled to information concerning the expenditure of funds by public bodies in the acquisition of lands to be used in the carrying out of its public functions, along with details of such contracts and of the negotiations leading to same.

I agree that there is a strong public interest in the transparency of public bodies in their dealings with the public and that it is a matter of great public interest that the public be made aware of how public bodies use public monies or assets in the furtherance of their public duties. However, I note from your application to this Office that you possess a copy of a land acquisition agreement relating to the land in question. The Council says the copy in your possession is the same as a copy of a record supplied to me, dated 17 May 1968, which sets out the conditions under which Mr and Mrs D agreed to dedicate the use of the land in question to the Council. The agreement also details the compensation they were to receive from the Council as a result. It seems to me that, in so far as there has been any outlay of public monies involved, your clients are already fully aware of the details of the transactions between the Council and Mr and Mrs D in relation to the land in question.

Records 72, 73, 74, 75, 76 and 77 relate to ongoing correspondence between the Council and Mr and Mrs D concerning the property in question. It seems to me that there is little public interest to be served by breaching the right to privacy of Mr and Mrs D. Such release will not enhance any further your clients' understanding, or indeed that of the public, as to the means by which the Council acquired the use of the land in question. Accordingly, with the exception outlined below, I find records 72, 73, 74, 75, 76 and 77 to be exempt from release under section 28(1) of the FOI Act. Given my finding that these records are exempt by reference to section 28(1), it is not necessary for me to consider the relevance of the other exemptions claimed by the Council (i.e. sections 21 and 23).

The first paragraph of record 72 summarises the content of the Land Acquisition Agreement of 17 May 1968, which I consider to relate to personal information about Mr and Mrs D. However, as you already have a copy of this agreement, I consider the release of this paragraph to be a minimal invasion of their privacy. I understand that the Council has agreed to release this portion of record 72 to you. However, I find that the remainder of record 72 is exempt under section 28(1) of the FOI Act.

Post - Commencement Record - No. 78

Record 78 is an internal Council memo dealing with a planning application from your clients' company for a proposed development on the land in question. While it could be said that this record is not covered by the scope of your request, the Council has agreed to release this record to you, subject to the deletion of a brief reference to third other parties which the Council's considers to be personal information. I consider that the reference does amount to personal information about these parties and I see no public interest in releasing that information to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary the decision of the Council on your request of 31 August 2001; whereas I affirm the decision of the Council generally to withhold the records sought by you, I direct the release (a) of the first paragraph of record no. 72 and (b) of record no. 78 (subject to the deletion of the reference to a third party, as outlined above).

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner