The Senior Investigator varied the decision of the Council to grant the request and found that some records and parts of records should be withheld from release.

Case Summary

Whether the decision of the Council to grant access to a request to which section 29 of the FOI Act applies, involving access to documentation relating to planning enforcement matters concerning the Applicant, is justified.

Date of Decision: 08.04.2011

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

Background:

This review arises from a decision  made by Kerry County Council on 9 November 2009 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest.Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), found to apply, should be overridden in the public interest. The Applicant or affected parties, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to this Office directly.

On 25 September 2009  the original requester had sought copies of planning enforcement files numbered  U144-01 and U208-04. The records in question relate to enforcement issues regarding alleged unauthorised quarrying activity. The Council formed the opinion that the request was one to which section 29 of the FOI Act applied and undertook a process of formal consultation with the Applicant. In a reply of 21 October 2009, the Applicant objected to the release of  all records and asked the Council not to grant the request. The Applicant also asked the Council for the name(s) of the person(s) who had made the request and to state the reasons why the information is required.

The Council's Decision

In its decision, dated 9 November 2009, the Council advised the Applicant that it did not accept his objections in relation to certain records and decided that access should be granted, in the public interest, to the original requester to all nine records in File U144-01 with three records partially withheld (redacted) and to all eleven records in File U208-04. It advised the Applicant of his right to apply directly to the Information Commissioner for a review of the decision. There is no internal review decision available where a decision is made by a public body under section 29 of the Act. The Council also indicated to the Applicant that in relation to FOI requests it is not the Council's practice to release the name of the requester. It also informed the Applicant that no reason was given for the request by the original requester.

On 12 November 2009 the Applicant applied to this Office for a review of the Council's decision.

In accordance with section 29 procedures, on 30 November 2009, this Office informed the Applicant, the Council and the original requester, that it was undertaking a review of the Council's decision. The Applicant was informed that he could make a submission to this Office in support of his views that the Council's decision to grant access to the records should not be upheld by the Commissioner.  

On 11 December 2009, the Council  provided this Office with a schedule and copies of the records it considered relevant to the initial FOI request,  including the records it proposed to release, in full or in part, to the original requester.

On 1 February 2010 the Council provided the Applicant with a Schedule and copies of the records it proposed to release to the original requester.

On 18 February 2010 this Office provided initial views to the Applicant that it agreed with the Council that the records fall for release, apart from some information in certain records that should not be released on the basis that the records contained personal information of persons other than the Applicant.  

In a response, dated 1 March 2010, the Applicant informed the Office that he continued to object to release of records principally on the basis that the records contained information that was personal to him and [ A N Other ] . He also contended that he should be provided with the names of the person(s) who made the original request for information.

In a letter of 10 January 2011, Mr Brian Murnane, Investigator of this Office, informed the Applicant of his preliminary view that he agreed with the Council that certain records should be released in the public interest in accordance with sections 27 and 28 of the FOI Act but required an argued case from the Applicant setting out why he considered the records should be withheld in the public interest.  In response, dated 30 January 2011, the Applicant reaffirmed his original views and strongly urged that the records should be withheld from release but did not provide any further elaboration in support of this. The Council maintains that the public interest warrants release of the records.

At this point I think it would be useful to clarify that, while the files in question relate to a planning enforcement issue following a complaint regarding alleged unauthorised quarrying activity, no enforcement proceedings or legal proceedings were taken by the Council against the Applicant identified in the records.   Also, I would like to clarify that while section 29 gives third parties, in this case the Applicant, the right to be consulted by a public body in advance of release of records that may affect their interests, such consultation is limited to consideration of whether section 26(3), 27(3) or 28(5) apply to overrule the exemption of records under sections 26, 27 or 28 and whether, accordingly, records or parts of records should be released in the public interest. It follows that the role of this Office is confined to consideration of those provisions only, and this Office does not have statutory jurisdiction to consider any other exemptions when dealing with a case to which section 29 applies.  Therefore the review is confined to sections 26, 27 and 28 as set out above.

This review was conducted in accordance with section 34(2) of the FOI Act by Mr Seán Garvey, Senior Investigator, Office of the Information Commissioner, who is duly authorised by the Information Commissioner ("the Commissioner") to do so.

Scope of Review

As indicated above the records in question relate to the Council's planning enforcement function concerning quarry developments and the scope of this review is confined to those records in planning enforcement files, U144-01and U208-04, which it proposes to release  to the original requester. As the Council has provided the applicant with a schedule together with copies of the relevant records it proposes to release, I will use the same numbering system as used by the Council and by Mr Murnane in his preliminary views, to identify individual records. Also for the purpose of the review I will use the term records or parts of records to include warning letters from the Council and associated memoranda, inspection reports and maps and photographs produced by the Council as part of its planning enforcement process and held in the relevant files.

Accordingly this review will focus on the information in the following records:

File U144-01:

Record No 1: Letter of 12 September 2001 (part redacted) from the County Secretary to the complainant "X" (part redacted) regarding unauthorised quarrying.

Record No 2: Letter of 12 September from the County Secretary to the applicant regarding warning against unauthorised quarrying.

Records Nos: 3, 4, 5 and 6: Copy of Council's Site Report dated 28 August 2001 from the Planning Enforcement Section to the Assistant Staff Officer (ASO) Planning with location map and undated photographs of alleged quarrying activity.

Record  No 7: Copy of Memo dated 11 August 2001 from the ASO Planning Department to the Senior Executive Engineer (S.E.E)  Planning Department regarding a complaint of unauthorised quarrying.

Record No 8: Letter of 11 July 2001 (part redacted) from the County Secretary to the complainant "X" (part redacted) regarding unauthorised quarrying.

Record No 9: Copy of  Council's complaint form dated 2 July 2001(part redacted).

File  U208-04:

Record No 1: Copy of complaint form dated 14 June 2004.

Record No 2: Copy of Memo dated 14 June 2004 from the ASO Planning Department to the Executive Engineer (E.E) Planning Department regarding an alleged unauthorised development.

Record No 3: Copy of Memo dated 14 June 2004 from the ASO Planning Department to the Council's Kenmare Area Office regarding an alleged unauthorised development.

Record No 4: Copy of a photograph dated 5 July 2004 of works at site.

Record No 5: Copy of  a location map of site of development (undated).

Record No 6: Copy of Memo dated 14 June 2004 from the ASO Planning Department to the E.E in the Planning Department regarding alleged unauthorised development with a report of inspection of 5 July 2004.

Record No 7: Copy of Warning Letter dated 28 July 2004 to the applicant from the ASO in the Planning Department.

Record No 8: Copy of letter to applicant dated 28 July 2004 enclosing warning letter (Record No. 7) from ASO in the Planning Department .

Record No 9: Copy of  Memo dated 12 August 2004 from the ASO in the Planning Department to the EE Planning Department requesting re-inspection of alleged unauthorised development.

Record No 10: Further copy of Re-inspection Memo from ASO Planning to E.E. in the Plannnig Department with report of re-inspection dated 9 September 2004.

Record No 11. Copy of email dated 12 August 2004 from the A/S.E.E in the Roads and Transportation (South) Department to the ASO Planning Department regarding unauthorised development.

Therefore the question I have to address is whether the Council is correct, under the provisions of the FOI Act, in its decision to provide access to the information in those records or parts of records on the basis that the public interest is better served by release than by refusing to release the information, or whether the Applicant has demonstrated to the Commissioner's satisfaction that the Council's decision to grant access to the records at issue was not justified.

Submissions

.

Findings

Preliminary Matters

In conducting this review I have had regard to the scope of the original requester's specific request, to the provisions of the FOI Acts, the contents of the individual records, the submissions made by the Applicant to the Council and to this Office, and to the additional information and clarifications provided  at the request of this Office.

I wish to emphasise that under section 34(12)(a) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the person concerned shows to the Commissioner's satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the Applicant to show that the decision of the public body to release the records concerned was not justified.

Also I wish to point out that, while the Commissioner is 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 all reasonable precautions are taken in the course of reviews to prevent disclosure of information contained in an exempt record.  

Analysis and Findings

Applicant's contention that identity of original requester and reasons for request should be made known. 

I will now address the Applicant's contention that the identity of the original requester should be made known to him.

The Information Commissioner's role is confined to records captured by the wording of the original FOI request. As the identity of the original requester is not contained in the records relevant to this review as set out above, it is not within the scope of the review and will not be considered further.

Regarding the reasons the original request was made, section 8(4) of the Act precludes a public body from taking into account any reasons or motivation a requester has for a  request.  These views have been set out by the Commissioner, in previous cases (see decision in case number 99591, 99594, 99596, 99598 and 99606 available on www.oic.gov.ie).

I will now consider the particular exemption provisions that the Applicant considers justifies exemption of release of the records on the basis that the information is personal in accordance with section 28 of the FOI Act.

Section 28 - Personal Information

Section 28(1) of the FOI Act provides that a head of a public body shall refuse to grant access to a record, if in the opinion of the head, access would involve the disclosure of personal information (including personal information relating to a deceased individual), unless the public interest in release outweighs the right to privacy of the individual to whom the information relates (section 28(5)).  The definition of personal information as set out  in section 2(1) includes

"(x) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual" and "(xi) information relating to property of the individual (including the nature of the individual's title to any property)".

The FOI Act recognises a very strong public interest in protecting privacy rights and this is recognised both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY").  The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies. There is a limited number of exceptions to this provision of the FOI Act. One exception is where the person to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act which is clearly not the position in this case.  Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) 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, or (b) the grant of the request would benefit that individual.

The Applicant contends that the information in the records is personal and that it should be exempt from release under section 28(1) of the FOI Act. The Council agrees that certain information contained in the records under review is personal information but suggests that there is a greater public interest in such information being available to the public and that such personal information that would identify the Applicant as engaging in alleged unauthorised quarry activity under possible investigation or enforcement proceedings should not be protected. 

I note that Mr Murnane in his preliminary views considered that parts of records in files U144-01and U208-04, were potentially exempt from release in accordance with section 28(1) of the FOI Act and the balance of the public interest test under section 28 lies in not releasing those parts of records. He did not consider that the remaining records or parts of should be withheld from release because he did not consider they contained personal information of the Applicant.

However, in a recent decision, namely case number 100110 (Ms X and the Department of Agriculture, Fisheries & Food available on www.oic.gov.ie ), this Office has considered whether information relating to the business affairs of a farmer, which is analogous to that of a sole trader, constitutes personal information.  In that decision it was found, as a result of a recent European Court of Justice ruling, that such information does constitute personal information.  

Therefore having considered and examined the records in the light of that decision, I can accept for the purpose of this review that information contained in the records under review is personal and potentially qualifies for exemption under section 28(1). However, that is not the end of  the matter as under section 28(5) there is a public interest test to this exemption that I must now consider.

Section 28(5)

Section 28(5) provides that a record which is exempt from release in accordance with section 28(1) may be released when, in the opinion of the head concerned, on balance -

"(a) 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, or

(b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 29, grant the request."

No argument has been made, nor do I find any basis for concluding, that the release of the records at issue would be to the benefit of the Applicant.  On that basis I find that section 28(5)(b) does not apply in this case. I must therefore consider whether the information in the records should be released in the public interest in accordance with section 28(5)(a).

To apply section 28(5)(a), it is necessary to identify the various public interests served by the release of the particular records as well as those served by the withholding of those records.  Relative weights must then be applied to these conflicting interests and a judgement made as to which set of public interests outweighs the other.

I set out below what I consider to be the public interest considerations in favour of release of records as follows:-

• the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for actions taken by a public body, and   
• the public interest in members of the public knowing how a public body performs its planning enforcement functions and being able to from an opinion as to whether those functions are being properly discharged by the Council.    

The public interest factors favouring withholding records include:

• the public interest recognised by the FOI Act itself, in protecting the Constitutional right to privacy of members of the public, and
• the public interest in ensuring, in this case, that FOI is not used to release sensitive personal information held by a public body relating to its enforcement functions where no enforcement proceedings or legal proceedings were taken by the Council against a person, identified in the records.        

The Applicant considers that the public interest is better served by refusing to grant the request as the factors protecting his privacy clearly outweigh those in favour of release. The Council contends that the public interest is better served by releasing the information.   

Assessment and Conclusions

Having examined the records and in the particular circumstances of this case, I accept that in this instance the records contain the Applicant's personal information.  I also accept that the release of such information could lead directly or indirectly to the identification of the Applicant and impact on his rights to privacy. Given that no action was taken by the Council following its investigation of the original allegation of unauthorised quarrying activity, I consider that the public interest, recognised by the FOI Act itself, in protecting the right to privacy of the Applicant is the most significant factor relevant to this case.  

On balance, therefore,  I consider that the public interest considerations in favour of withholding release of those records or parts of records that contains the personal information of the Applicant outweighs those in favour of such information being released and I find accordingly.  Details of where such information occurs in the records are specified in the Schedule to this decision.

The question remains as to whether the Applicant has met the burden of proof under section 34(12) of the FOI Act requiring him to show that the Council's decision to release the remaining records or parts of records in accordance with section 26 or 27 of the FOI Act is not justified.      

Section 26 - Information Obtained in Confidence

Section 26 of the Act is concerned with the protection of information held by public bodies, received in confidence from third parties and where disclosure would be likely to prejudice the giving of similar information to the public body in the future. It is subject to a public interest test as to whether on balance the public interest  is better served by granting release than by refusing to grant release of records or parts of records. As neither the Applicant or the Council has made any specific reference to the confidential nature of the information contained in the records it proposes to release and  from examining the records involved, I consider that it is not necessary for me to consider the exemptions in that section of the Act as part of this review. I find accordingly. Therefore the question still remains as to whether the Applicant's contention that the Council's decision to release records is not justified in accordance with section 27 of the FOI Act.    

Section 27 - Commercially Sensitive Information

This section provides as follows:

" 27 -(1) Subject to subsection(2), a head shall refuse to grant a request under section 7 if  the record concerned contains-

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

........

(3) Subject to section 29, 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."

Mr Murnane informed the Applicant of his preliminary view that section 27(1)(b) potentially applies to certain records or parts of records and that the essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. He informed the Applicant and the Council that his preliminary view was that the public interest would not be better served by release of the information in certain specific records or parts of records as the enforcement proceedings referred to in them had not been proceeded with by the Council. He also indicated that he considered that other records did not contain a high degree of commercial sensitivity and indicated that he agreed with the Council's decision to release the remaining records and parts of records not exempt under section 28.  

I note that he also indicated to the Applicant that an arguable case needs to be put to this Office that release of the information in the particular records as listed by him could damage and effect the Applicant's business activities and that release of such commercial information is not in the public interest.

In response to these matters the Applicant made a number of general points in relation to why he contend that the information in all records should not be released. However, he did not specifically address whether the information contained in the specific records cited by Mr Murnane is commercially sensitive within the meaning of section 27(1)(b) of the Act.

The Council indicated to this Office that while it accepted that the enforcement proceedings had not been proceeded with, it nevertheless considers that the Applicant's commercial activities would not be negatively affected by release of the information in the records and contended that the records should be released in the public interest except for certain personal information contained in the records. As I have found that the Applicant's personal information as contained in the records should be withheld from release, the only issue I have to consider is whether the Applicant's contention that the Council's decision to release the remaining records or parts of is justified in accordance with section 27 of the FOI Act.  

Section 27 - Findings

Having examined the contents of the remaining information in the records, I find it difficult to accept that disclosure of any of the remaining information,  would identify the Applicant or reveal the location of his enterprise, thereby damaging the Applicant and effecting his business. Nor has this Office been provided with any evidence that has demonstrated to my satisfaction what adverse effects would arise from release of such  information, at this particular point in time, particularly given the historic and generic nature of the remaining records or parts of records. I am therefore of the view that section 27(1)(b) does not apply to the remaining information in the records and I find that the Applicant has failed to meet the burden of proof under section 34(12) of the FOI Act requiring him to show that the decision of the Council to grant access to the remaining information at issue is not justified.

Even if I was to find that section 27(1) did apply there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest.

Briefly addressing this aspect, I can accept Mr Murnane's summary of the public interest considerations in favour of release of the records and those favouring withholding release.  I agree that it is necessary to weigh up the relative strengths of these opposing public interests and attempt to measure the actual benefit of release as opposed to any detrimental effect on the Applicant, has to be made. I also agree that there is a strong public interest in members of the public having the reassurance and knowledge that public bodies, can disclose information relating to openness and transparency on actions taken by Council in its planning enforcement functions.   I also consider that there are balancing public interest factors against release, including the public interest in ensuring  that FOI is not used to release sensitive commercial information held  by a State body relating to commercial businesses interests.

Given that the information in the remaining records or parts of records does not in my view contain sensitive commercial information the release of which would adversely affect the Applicant's commercial activities, I consider that, on balance, the public interest considerations in favour of release of the remaining records and parts of records outweigh those in favour of their being withheld. Accordingly, I find that the remaining records and parts of records should be released.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Council in this case and confirm the decision in relation to the release of certain information contained in the records and direct that certain other information should not be released. Details are set out in the accompanying Schedule to this decision.

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 on which notice of the decision was given to the person bringing the appeal.

Schedule to Review of Information Commissioner -Case No 090296 . Freedom of Information Acts 1997 & 2003 (FOI Act).

Seán Garvey

Senior Investigator

08 April 2011