Whether the Council was justified in its decision to refuse to grant access to copies of invalid planning application notices issued during 2014 under section 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

By letter dated 2 January 2015, the applicant sought from the Council copies of all "Invalid Decision/Notices issued by the planning authority to planning applicants" during 2014. In its decision of 2 February 2015, the Council refused the request under section 37 of the FOI Act on the ground that such correspondence is regarded as personal correspondence between the Council and the planning applicants, and is neither available on the Council's website, nor for public inspection. The applicant requested an internal review of the Council's decision by letter dated 2 March 2015. On 24 March 2015 the Council issued its internal review decision upholding the original decision to refuse access to the records at issue.

The applicant applied to this Office on 31 March 2015 for a review of the Council's decision. In conducting this review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the Council, and to correspondence between the Council and this Office on the matter. I have also had regard to the provisions of the FOI Act and to the contents of a sample of the records at issue which were provided by the Council for the purpose of this review.

Scope of the Review

In his request for internal review, the applicant explained that he was seeking access to the reasons why any particular planning application has been invalidated. He noted the accepted practice of separating private contact information from details made publicly available in respect of planning applications and he suggested that it was a simple matter to redact any private details from the reasons for invalidation. He made it clear that he did not require personal contact details of the applicants.

Accordingly, this review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the invalid application notices with the redaction of the personal contact details of the applicants.

Preliminary Matters

Before I deal with the substantive issue in this case, I would like to make a number of more general comments. In his correspondence with this Office, the applicant argued that planning legislation requires planning authorities to make decisions on planning applications publicly available and he argued that "the test in this FOI case is whether an invalidation notice is in fact an official decision of a planning authority; if the answer to this question is yes then Section 38(1)(d) of the Planning and Development Act is obligatory and the planning authority is required to make its decision available to the public".

It is important to note that this Office has no role in the interpretation or operation of planning legislation. Therefore, it would be inappropriate for me to consider whether the Council's policy of not publishing invalidation notices sent to planning applicants is in breach of its obligations under planning law, nor does the Commissioner's remit extend to adjudicating on how public bodies carry out their functions generally or to investigating complaints against public bodies. Rather, this review is solely concerned with the question of whether the Council was justified, under the provisions of the FOI Act, in refusing the applicant's request.

Secondly, it is important to note that section 13(4) of the FOI Act provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons the requester has for making a request.

Finally, section 22(12)(b) provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body concerned shows to the satisfaction of the Commissioner that its decision was justified. This has the effect of placing the onus on the Council of satisfying this Office that it was justified in refusing the applicant's request in this case.

Analysis and Findings

Section 37(1)
As part of the planning process, the Council publishes a list of invalid applications on its website on a weekly basis. For each application, the list includes details of the file number, the applicant's name, the application type, the date upon which the application was deemed invalid, the description of the development proposed, and its location. Having examined the sample invalid notices that the Council provided for the purpose of this review, it seems to me that the only remaining information that has been withheld is the reason why the application was deemed invalid, which is presented by way of informing the applicant what should be done for a valid application to be made.

Given that the applicant is not seeking access to the personal contact details of the various applicants whose applications were deemed invalid, and given that the Council refused the request under section 37, the first question I must consider is whether the disclosure of the information contained in the invalid notices which contains the reasons for the application having been deemed invalid would result in the disclosure of personal information relating to individuals other than the applicant.

Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information that is personal without prejudice to the generality of the foregoing definition, including "... (xiii) information relating to property of the individual...". The Council argues that the correspondence at issue contains personal information as it is not made available to the public and is known only to the applicant and, where applicable, his/her agent.

Given the fact that a substantial proportion of the information relating to invalid planning applications is already publicly available, it is a close call as to whether disclosing the details of the reason for the invalidation could reasonably be considered to disclose personal information relating to the applicants. I note that there is nothing inherently private or personal about the information concerned. In my view, it discloses nothing more than the fact that there were deficiencies in the application itself. Having regard to the definition of personal information, however, and having regard to the fact that the Council maintains that it is not required to publish the reasons for deeming applications invalid and that it appears to treat such information as confidential, I accept, on balance, that the disclosure of the reasons, paired with the identifying information in the records relating to the applicant and the application details, would disclose personal information relating to identifiable individuals. I find, therefore, that section 37(1) applies. The effect of section 37(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2) or 37(5).

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. Having examined the records to which I have found section 37(1) to apply, I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. Consequently, I find that section 37(2) does not apply to the details at issue here. Section 37(5) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where, 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 concerned. In my view the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

This leaves me to consider, under section 37(5)(a), whether the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individuals concerned.

I should point out at this stage that the decision letters the Council issued to the applicant give no indication that there was any consideration given to where the balance of the public interest lay in this case. Given that the Council has been subject to the provisions of the FOI Act for the past 17 years, this is unacceptable. I expect the Council to ensure that all future decision letters provide appropriate details of its consideration of the public interest, where required.

Nevertheless, in its submission to this Office, the Council argues that the disclosure of the details of what caused an application to be invalidated is not of general interest. It argues that once an application has been made invalid, there is no role for third parties and that the reasons for the invalidation are a matter for the applicant and the planning authority only. Essentially the Council is arguing that there is no public interest in disclosing the information as the general public has no part in the process. If that is its argument, then I disagree. In my view, there is a strong public interest in ensuring openness, transparency and accountability in how a public body performs its functions, regardless of the fact that the issue of an invalid notice brings the planning process to a conclusion in such cases. Indeed, section 11(3) of the FOI Act provides that in performing any function under the Act, the Council must have regard to, among other things, the need to achieve greater openness in its activities and to promote adherence by it to the principle of transparency in government and public affairs, and the need to inform scrutiny, discussion, comment and review by the public of its activities.

It is also clear that planning legislation in Ireland recognises a specific public interest in openness and transparency in the planning process, and that an interaction by an individual with the planning process may necessarily involve the disruption of that individual's privacy not least with various requirements to put up public site notices and to advertise a development intention in the local press and the fact that planning files are available for public inspection. The fact that a significant amount of information may already be publicly available does not, in my view, mean that no further relevant information should be made publicly available.

On the other hand, the FOI Act recognises a public interest in protecting privacy rights. The language of section 37 and of the Long Title to the Act recognises this public interest. The right to privacy also has a constitutional dimension. Release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used. In my view the public interest in protecting the right to privacy is a strong public interest.

However, as I have outlined above, I do not believe that there is anything inherently private or personal about the information concerned. The disclosure of the invalid notice merely outlines the respects in which the application was deficient. In my view, the release of this information would lead to, at most, a minimal breach of an individual's right to privacy. On balance, having regard to the content of the information at issue, the level of information already available in relation to invalid notices, and the inherent transparency of the planning process, I am of the view that in this instance, the public interest in granting the request outweighs the public interest in upholding the privacy rights of the individuals concerned. Thus, I am satisfied that section 37(5)(a) applies.

Consequently, I find that the Council was not justified in refusing access to the invalid notices at issue in this review under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I find that the Council was not justified in refusing the request. I direct it to release copies of the invalid notices, with the redaction of the personal contact details of the applicants.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator