Case 031014. Application for review of refusal of records and refusal of statement of reasons - whether applicant had material interest in relation to a planning decision in accordance with section 18(5).

Case Summary

Facts

Following a decision by An Bord Pleanala (the Board) the requester sought access to records related to the decision, she also sought a statement of reasons under section 18 of the FOI Act. The Board refused any additional records on the grounds that a file containing all records covered by the scope of the request existed and was already publicly available (section 46(2) of the FOI Act refers). Regarding the section 18 request, the Board relied on section 18(2) on the basis that such a statement already existed as contained in two separate records which were outside the Act in accordance with section 46(2).

Findings

The Commissioner set the Board's argument in relation to the refusal of the section 18 request aside and examined whether the requester had a material interest in this case in accordance with section 18(5). The requester's submission indicated that her position was shared by other property owners in the vicinity, which comprised an estimated class size of 32 in total. It was apparent that she was not suffering any consequence or effect of the Board's decision which was not shared by others in her same position. In the circumstances of this particular case, the Commissioner found that the requester belonged to a class of persons of a significant size and was not considered to be materially affected by the decision in accordance with section 18(5). Consequently, the Commissioner found that the requester was not entitled to a statement of reasons under section 18.

Regarding the request for records other than those in the public domain, the Commissioner found that the Board was justified in refusing access to further records in this case.

Date of Decision: 16.01.2004

Our Reference: 031014

16.01.2004

Ms X

Dear Ms X

I refer to your application to this Office under the Freedom of Information ("FOI") Act, 1997 for a review of the decision of An Board Pleanála ("the Board") on your FOI request for access to records. I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

By letter dated 28 May 2003, you submitted an FOI request to the Board for all records relating to a planning decision regarding the development of apartments in *********, other than those available on the Board's website or which had been made available to you during the consultation process. In your request, you specified that the records should include information about your own personal property and a list of those staff involved in the decision, together with the grade, qualifications and experience of each staff member.

A further aspect of your request was for a statement of reasons under section 18 of the FOI Act for the Board's decision to grant planning permission and the factors taken into account in making that decision.

By letter dated 26 June 2003 the Board advised you of its decision to provide you with a list of the relevant staff and their respective grades. Any additional information concerning the particular qualifications of these individuals was refused under section 28 of the FOI Act on the grounds that it constitutes personal information about the staff members. The Board refused any additional records on the grounds that a file containing all records covered by the scope of your request existed and was already publicly available, citing section 46(2) of the FOI Act which provides that the Act does not apply to records which are in the public domain.

You sought an internal review of that decision on 3 July 2003. Your first point was that you did not accept that the public file contained all records covered by the scope of your request and therefore that section 10(1)(a) of the FOI Act could not be said to apply. Secondly, you rejected the Board's decision to refuse details of the particular experience and qualifications of the staff members in question in reliance upon section 28. Finally, you noted that the Board had not addressed your request under section 18 of the FOI Act for a statement of reasons as to why the decision was made to grant planning permission.

On 24 July 2003 the Board's internal reviewer upheld the original decision to refuse the information concerning the staff members. However, at this time, details of the particular eligibility requirements for each of the posts held by those individuals were provided to you. In relation to your request for a statement of reasons, the Board stated that detailed reasons for its decision had already been recorded in the Board direction of 2 May 2003 and the Board order of 21 May 2003. The Board refused to provide any further statement. The Board also said that no records additional to those held on the file existed.

You applied to this Office on 15 September 2003 for a review of this matter.

I have conducted this review in accordance with the provisions of the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003. Unless specified otherwise, all references to the "FOI Act" in this letter are to the Act as amended. In this particular case, the amendments to the Act have no bearing on the issues arising. In the course of this review, I have had regard to the following:

• to your own submissions, both as contained in your correspondence with this Office and in correspondence with the Board;
• to your further submissions made in response to the preliminary views expressed by Investigator, Ms. Sarah Kember, in her letter to you dated 5 December 2003;
• to the initial conclusions of the Board on this matter and to its subsequent comments in response to queries raised by this Office; and
• to the provisions of the FOI Act generally.

Scope of Review

The sole issue in this review is whether the Board's decision to refuse your request for certain records and for a statement of reasons is correct in accordance with the provisions of the FOI Act.

Findings

Section 28(1): Personal Information

In her letter to you of 5 December 2003, Ms. Kember explained how section 28(1) applies and outlined her preliminary views on its relevance to your particular request. It is not necessary for me to repeat the general information regarding the operation of this section in this decision.

Ms. Kember noted that you sought access to the details of qualifications and experience of the ten staff members who were directly involved in your appeal and explained why, in her view, the particular information you sought constituted personal information about the individuals in question.

In responding to Ms. Kember's letter, you stated as follows:

"I do not wish to pry into personal affairs of staff members and would be satisfied to know that the staff listed all met the criteria set out for the post held and the number of years of experience in their current post".

Accordingly, the scope of this aspect of your request is narrowed to include only records concerning:

• whether each member of staff in question was appropriately qualified; and
• the length of time each of these individuals had held their post.

Ms. Kember asked the Board for a list of the requirements for each of the posts held by the staff members in question, together with written confirmation that each of these individuals held the requisite qualifications. You already have access to the qualifications of two of the ten individuals, being Mr Lewis Clohessy whose details are on the Board's website, and Ms Jane Dennehy who consented to the release of her qualifications to you. I am satisfied that both these two individuals and each of the remaining eight staff members held the appropriate qualifications for the position at the time of their appointment. Certain individuals also hold additional qualifications. I trust that this satisfies this particular aspect of your query and I will not be considering this matter further in my decision.

With regards to your request for the amount of time each member of staff held his or her their post within the Board, I find this to constitute personal information about those individuals and not information about the person in his or her official capacity. This goes beyond the exception to what is considered to be "personal information" for the purposes of the FOI Act where the individual in question is a member of staff or employee of a public body.

The definition of "personal information" in section 2 of the FOI Act specifically notes at (iiii) that such information is to include "information relating to the employment or the employment history of the individual".

As you know, where certain types of information concern a member of staff of a public body, this may not constitute personal information for the purposes of the FOI Act. However, such information is limited to information about the following: the office in question; the position itself; the name of the individual; the terms upon which the individual holds the position; and information recorded or written by the individual in the performance of his or her official functions. This type of information has already been provided to you, including the names of the staff members, their respective positions and the requirements for holding that position. I do not find that the length of time spent in a post constitutes information about the official role or occupation of these individuals. Accordingly, I find that it constitutes personal information and is exempt under section 28(1)(a) of the FOI Act.

I am satisfied that the details provided to you by the Board meet any public interest in the release of information relating to this particular aspect of your request and that there is no public interest in release of information regarding the length of time the staff members have held their respective positions which outweighs the interest in the protection of their privacy.

Section 18: Statement of Reasons for an Action or a Decision of a Public Body

As a preliminary observation, I would like to note that the Board's stated reason for refusing your request for a statement of reasons was that such a statement already existed as contained in two separate records. These records are held on the file which is in the public domain. As the records in question are publicly available, the Board referred to section 46(2) of the FOI Act which provides that the Act does not apply to records which are already available for inspection. The Board then referred to section 18(2) of the FOI Act which provides that a statement of reasons does not require "the giving to a person of information contained in an exempt record".

However, I have chosen to leave this argument aside, and have gone on to consider whether you are, firstly, a person who is entitled to a statement of reasons under section 18 and, if so, whether the reasons as contained in the records referred to by the Board (being the Board direction of 2 May 2003 and the Board order of 21 May 2003) can be said to be an adequate statement of reasons for the decision to grant planning permission and to deny your appeal under section 18. As you know, in order to be entitled to a statement of reasons for an action or a decision of a public body, the individual who seeks such a statement must be affected by the act or decision, and must have a "material interest" in a matter affected by the act or to which it relates.

In her letter to you, referred to above, Ms. Kember explained what is meant by a "material interest" as outlined in section 18(5) of the FOI Act.

In your letter of 18 December 2003, you responded as follows:

"In your letter you commented on my capacity in being personally affected by this decision as well as having the necessary material interest. You also commented on issues relating to joint personal information. I would like to comment on all of these issues together as follows:

Firstly my ownership of my property at ****** differs from that of the developer in that my property is my home and in my personal ownership. The developer is acting as an agent for the companies ******* construction as the attached records from the Companies Registration Office show.

Secondly, the location of my property - as you will see from the enclosed site map - is such that this development impacts directly on me and other home owners in ******* in a much more immediate and personal way from say residents in other separate developments on the estate. (******** is across the road, and houses are some distance away.) The developer is attempting to incorporate into the new development external areas which I contend are part of my property in accordance with my lease and which I have not agreed to allow the developer to do.

On the specific issue of joint personal information, there is provision in the FOI Act to release personal information in the public interest, where this would benefit those to whom the information relates. In my view there is a strong case for doing so in this instance.

There are currently two Apartment Blocks in ********, each of 32 apartments, with about half of them being occupied by owner-occupiers such as myself. Owners have signed contracts and leases dated from 1984 in relation to their apartments and the leases include a Management Company to run each Block and a holding company consisting of each Management Company to run the external areas. Each Block is each represented by a Committee, which holds a list of the owners in each block. The current situation arises from the fact that the original development of four blocks did not proceed, hence the new planning application.

The matters relating to my and other owners dispute with this developer are far from over. We contend that all along his delays in handing over our property to us in accordance with the leases signed, was to enable him to take advantage in a future planning application. It would appear that he has been successful so far in doing so. I and other owners are being seriously disadvantaged by this decision and are trying in every way that we can to assert our rights and achieve a satisfactory outcome. It means a continues struggle to monitor developments, inspect the public file at DCC to see if steps are being made to meet conditions imposed as well as ongoing issues with our solicitor and contact with the Companies Registration Office to ensure that our management company is not struck again off while the developer continues to insist he is in the process of handing over the company to us etc. etc. etc."

In relation to your comments concerning joint personal information, any reference to this was in the context of the particular portion of the Board's decision which refused certain information under section 28(1)(a). As I understand the situation, the only records refused on this basis are the records relating to the staff members, referred to above. Personal information, and whether information is joint personal information about more than one individual is not relevant to a consideration of the appropriateness or adequacy of a statement of reasons under section 18.

I have carefully considered your submissions, in particular your above comments as to why, in your view, you are personally - or in the language of the FOI Act, "materially" - affected by the Board's decision and therefore are entitled to a statement of reasons.

However, the provisions of the FOI Act are clear: no person who suffers a consequence of an action or a decision of a public body which is also experienced by a class of persons of significant size will be considered to have a "material interest" for the purposes of section 18. You have stated yourself that your position is shared by the other property owners in ********* which you estimate to be 32 in total. Clearly, you are not suffering any consequence or effect of the Board's decision which is not shared by others in your same position.

In your case, you are one of a group, a class of persons, being owners of property at *********, who have all been affected by the decision of the Board. As such, under the particular provisions of the FOI Act, you cannot be considered to be a person who is materially affected by the decision and therefore, you are not entitled to a statement of reasons under section 18 of the FOI Act.

Even if I had not formed this view, I would find that the reasons as contained in the above-mentioned records are adequate for the purposes of section 18. In earlier decisions, the former Information Commissioner, Mr. Kevin Murphy, has found that to satisfy the requirements of section 18, a statement must be clear and intelligible, identifying the criteria relevant to the action or decision in question and explain how such criteria affected the act or decision. The Commissioner has found that, to be adequate, a statement does not necessarily have to contain a detailed clarification of all the issues which a requester identifies as relevant.

I find that the Board's decision to refuse to provide you with a particular statement of reasons is justified in terms of the provisions of the FOI Act.

Section 10(1)(a): Additional Records

Ms. Kember outlined the application of section 10(1)(a) in her letter to you of 5 December 2003 and provided her preliminary views as to why she was of the opinion that the Board's decision to refuse any further records on the basis that none existed or could be found despite all reasonable efforts to locate such records was correct.

Ms. Kember also invited your further comments on this particular issue and I note that, in your submissions, you did not raise this matter further.

I agree with Ms. Kember's views and, in the absence of any further submissions to contradict the position as understood by this Office, do not consider it necessary to re-state the position here, save to refer to it for the purposes of my decision.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003, I hereby affirm the decision of An Bord Pleanála.

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 eight weeks from the date of this letter.

Yours sincerely

Senior Investigator