The Senior Investigator annulled the Council's decision and found that the records should be released.

Case Summary

Whether the Council is justified in its decision to withhold certain records and parts of records in accordance with sections 23 and 26 of the FOI Act.

Date of Decision: 23.04.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

On 21 July 2009, the applicant made an FOI request to the Council seeking copies of the correspondence that prompted the Council to write to her concerning alleged unauthorised developments. In its decision of 18 August 2009, the Council identified five relevant records as follows:-

R1. Memo recording complaint received by telephone;

R2. Internal report on the relevant planning permission dated 3.7.2009;

R3. Document submitted by third party raising main issues;

R4. Copy of Manager's Order 59133 dated 3.7.09 regarding service of warning letter; and

R5. Copy of warning letter issued 3.7.2009.

It decided to withhold records R1 and R4 in their entirety, and to release records R2 and R3 with deletions. In relation to records R1, R2, and R3, the Council invoked the exemptions provided for in sections 23 and 26 of the FOI Act, while in relation to record R5 it contended that, as this record is available for public inspection at its Planning section, it is excluded from the scope of the FOI Act in accordance with section 46(2) of the Act.

Although the Council did not specify the particular parts of sections 23 and 26 it intended relying on, I am taking it from its decision that the relevant exemptions are those contained in sections 23(1)(a)(i), 23(1)(b), and 26(1).

On 28 August 2009, the applicant applied for an internal review of the Council's decision in relation to R1, R2 and R3. On 22 September 2009, the Council's internal review decision was to uphold the original decision in relation to R1 and R2, on the grounds of section 26, and to release R3.

On 23 September 2009, the applicant appealed against the Council's decision in relation to R1 and R2 and also contended that R3 had not been released in full.

On 22 February 2010, Mr. Colin Stokes, Investigator in this Office, wrote to the third party who had provided the information contained in records R1 and R3 and who had objected to the release of the relevant records. Mr. Stokes sought supporting arguments as to the basis of his objection and explained that, in cases such as this in the past, the Commissioner has held that such information should be released. Mr. Stokes invited the third party to make a submission on the matter but he failed to do so. I have therefore decided that it is now appropriate to make a formal binding decision on the issue.

Conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope

This decision is confined to the question as to whether the Council is correct in withholding records R1, R2 and parts of R3 as described above.

Submissions

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Findings

Preliminary Matters

At this stage I would like to make the point that while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve all parties right of appeal to the High Court in cases where there is disagreement with a decision I might make. In the circumstances of this case, section 43(3) requires me to exercise caution in relation to the description I can give of the records at issue. Having said that, I do not see any difficulty in stating that the issue with the three records under review is the identity of the third party who made the allegations to the Council.

I would also like to emphasise that under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof for refusing access to a record on the public body.

Findings

I will consider record R3 first. As I stated above, the Council contends that this record has been released to the applicant in its entirety while the applicant has argued that it is incomplete. The applicant has made two arguments in support of her contention that the record is incomplete i.e. that it has no signature or address and that it is "obscure in content". I have pursued this issue with the Council and they advise me that record R3 was attached to record R1, and this explains why there is no name or address on R3. I find this is a credible explanation and I am therefore satisfied that the Council is justified in its contention that record R3 has been released in full to the applicant. As regards the applicant's other point regarding the record being "obscure in content", the FOI Acts provide for the release of records without any interrogation as to their quality or content. There are therefore only two records to be considered further i.e. R1 and R2.

As already stated above, the relevant exemptions quoted in support of withholding these records are sections 23 and 26 of the FOI Act. For reasons which I will explain later I will consider section 26 first.

Section 26

Section 26(1)(a)

Section 26(1)(a) provides for the withholding of information given to a public body in confidence where:-

"the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body,"

You will note that there are four conditions or tests that must be applied to information to establish whether it qualifies as information given in confidence. To summarise, the information must be:-

1. given to the public body concerned in confidence and,
2. on the understanding that it would be treated by it as confidential and,
3. its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
4. it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

All four tests must be satisfied to justify exemption of a record.

However, it is not a blanket exemption and is subject to a public interest test. Also, neither the Council nor the third party provided this Office with any evidence to substantiate a contention that the information was received in confidence. Therefore, I am not satisfied that it has been shown that any of the tests in the provision have been satisfied to justify the Council's decision to exempt the information. On that basis, in line with the provisions of section 34(12)(b) referred to above, in my view the records are not exempt under section 26(1)(a). I find accordingly.

Even if I were convinced that section 26(1)(a) applies, there is a public interest test provided for by 26(3). Although not strictly necessary to do so, for the sake of completeness, I will outline my assessment of what I consider to be the public interest arguments relevant to this review.

Public Interest

Section 26(3) provides that:-

".... subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

The following are public interest factors that in my view favour release of information in this case:-

• the public interest in applicants exercising to the full their rights under the Acts.
• the possible public interest in exposing wrongdoing, inefficiency or unfairness.
• the possible public interest in achieving greater transparency in how the Department carries out its statutory functions,

In relation to the first consideration in favour of release, I am satisfied that there is an undoubted public interest in applicants exercising to the maximum extent their rights of access to information under the FOI Acts. However, having regard to the Long Title of the Act and to the specific terms of section 26, it seems to me that, generally, sufficient weight will not attach to this factor, of itself, to enable it to be said that the public interest in access rights will necessarily outweigh the right to confidentiality between the public body and a third party or organisation.

The second and third considerations are closely related and I consider that they represent stronger arguments in favour of release. In a general sense, it is considered that, in the context of a mature, representative democracy, public bodies must be open and accountable in the exercise of their functions.

The main public interest argument against release appears to be that:-

• The public interest in the Council having the benefit of all the information relevant to the execution of its statutory duties

The Council appears to be relying on the argument that release of this information could inhibit the provision of similar information in the future. However, as I stated above, it has not presented me with convincing arguments on this point.

Having considered the matter, in my view the public interest would, on balance, be better served by granting the request for release of the records.

Section 26(1)(b)

Section 26(1)(b) provides for the withholding of information given to a public body in confidence where:-

"disclosure of the information concerned would constitute a breach of a duty of confidence provided for by provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

The Council has presented no evidence whatsoever to show that there was any understanding of confidence on the part of any of the relevant parties with respect to these records. Moreover, it seems to me that no reasonable expectation of confidence could have arisen with respect to records of this nature unless assurances of confidentiality had been given, which in any event would have been entirely inappropriate in the circumstances. On this basis, and also in line with section 34(12)(b), I find that the records are not exempt under section 26(1)(b).

Section 23

The Council also quoted section 23(1)(a)(i) and (b) in its decision to withhold the information.

Section 23(1)(a)(i) and (1)(b)

These sections provide that:-  

"(1) A head may refuse to grant a request under section 7 if access to the record concerned could...reasonably be expected to -

(a) prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence." 

However, despite being invited to do so I note that no evidence of these possible harms has been submitted and that section 34(12)(b) of the FOI Act as referred to above applies. With particular reference to 23(1)(b), given the circumstances of this case, I do not accept that the Council could have given a sustainable assurance of confidentiality to the provider of the information and no evidence has been provided to substantiate any such assurance. Therefore I find that section 23(1)(a)(i) and (b) does not apply to the records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I find that record R3 has already been released in full to the applicant and I annul the Council's decision in relation to records R1 and R2 and decide that they should be released in their entirety.

Right of Appeal

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.

Seán Garvey

Senior Investigator

23 April 2010