Whether the Council was justified in its decision to refuse access to a letter it received relating to a planning enforcement matter under sections 30, 35 and 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

On 21 April 2015, the applicant made two requests to the Council for records held on Planning Enforcement File EF14/195. He provided further information to the Council relating to his request on 24 April 2015. The Council made a decision with respect to one of his requests on 15 May 2015 (Ref 15/147), and in relation to the other request on 19 May 2015 (Ref 15/149). The Council identified 21 records as being within the scope of the applicant's requests. It released 20 records to the applicant in full, and refused access to a copy of a letter dated 16 October 2014 it received from a third party relating to the enforcement matter.

While the applicant sought an internal review of both of the Council's decisions, only one record remained at issue. The Council affirmed its original decision to refuse access to the record. The applicant sought a review by this Office of the Council's decisions on 2 September 2015.

During the course of the review, Mr Art Foly of this Office notified the authors of the record at issue of his view that it fell to be released under the FOI Act and he invited submissions on the matter. No such submission was received. However, I note that the authors wrote to the Council on 23 November 2015 setting out their views as to why the record should not be released.

In conducting this review, I have had regard to the communications between the applicant and the Council as set out above. I have also had regard to communications between this Office and the Council, communications between this Office and the applicant, and to the contents of the record at issue.

Preliminary Matters

It is relevant to note, as a preliminary matter, that under section 13(4) of the FOI Act, decision makers must disregard any reasons the applicant may have for making a request.

I have had regard also to the provisions of section 22(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified". This places the onus on the Council of satisfying this Office that the decision to refuse access to the record at issue in this case was justified.

It should be noted that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Scope of Review

This review is concerned with solely whether the Council was justified in its decision to refuse access to a copy of a letter dated 16 October 2014 it received from a third party held on Planning Enforcement File EF14/195

Analysis and Findings

The record at issue is a letter that was prepared by representatives of the company alleged to have breached the conditions of a planning permission granted by the Council. During its consideration of the applicant's requests, the Council relied upon sections 35 and 37 of the FOI Act in refusing access to the record. During the course of the review, it also sought to rely upon the provisions of section 30 of the FOI Act. I will consider the applicability of each of these exemptions to the record in turn.

Section 30
Section 30(1)(a) of the FOI Act provides for the discretionary refusal of a request where the body considers that access to the record concerned could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body or the procedures or methods employed for the conduct thereof...".

In arriving at a decision to claim exemption under section 30(1)(a) a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable. However, to satisfy the Commissioner of the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of the particular records will give rise to the harm envisaged.

In its submission to this Office, the Council stated that the release of the record could reasonably be expected to prejudice the effectiveness of investigations and enquiries conducted by it in relation to planning matters. It stated that it is its policy to engage with bodies on a voluntary basis to obtain information in response to any dispute. It argued that should the record be released, it would impair the Council's ability to obtain meaningful information from a respondent to a complaint if the respondent was not in a position to be fully forthcoming where they may have a concern that all information would be obtainable by a member of the public in the future. The Council stated that it is in the public interest that the Council would not be fettered in its powers with respect to planning enquiries, and that it is in the public interest that the Council conserve public funds by endeavouring to resolve matters without recourse to costly and time consuming formal enforcement action or litigation.

On 12 September 2014, the Council issued what is described as a "WARNING LETTER PURSUANT TO SECTION 152 OF THE PLANNING AND DEVELOPMENT ACT, 2000" to a particular company. I note that the Council provided the applicant with a copy of that letter. The letter goes on to state the following:

"Any person served with this letter may make submissions or observations in writing regarding the purported offence to the Planning Authority not later than 4 weeks from the date of service of this letter. Any such submissions or observations received will be considered by the Planning Authority in deciding whether to issue an Enforcement Notice pursuant to section 154 of the Planning and Development Act, 2000. "

The record at issue in this case is the company's response, through its representatives, to that invitation to make submissions. Where a party has received a formal written warning of an alleged breach of planning legislation and has been notified that "any person who ... is carrying out unauthorised development shall be guilty of an offence...", it is difficult to accept that the party concerned might not be fully forthcoming in its response to the alleged breach, simply due to a concern that the response might be subsequently made publicly available. It is clearly in the party's own interests to respond to such allegations.

I fully accept that that it is in the public interest that the Council would not be fettered in its powers with respect to planning enquiries, and that it is in the public interest that the Council conserve public funds by endeavouring to resolve matters without recourse to costly and time consuming formal enforcement action or litigation. However, I simply cannot accept that the release of the record at issue in this case could reasonably be expected to impair the Council's ability to obtain meaningful information from future respondents to formal warning letters issued under the Planning and Development Act 2000. I find, therefore, that section 30(1)(a) does not apply to the record at issue.

Section 35
Section 35 of the FOI Act provides for the mandatory refusal of a record containing information:

• given to an FOI body in confidence and,
• on the understanding that it would be treated by it as confidential 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.

 

I cannot accept that the record at issue in this case was given to the Council in confidence and on the understanding that it would be treated by the Council as confidential. The conduct of the planning process is intended to be an open process, including, in my view, any subsequent enforcement actions. Indeed, I note that section 2 of "A Guide to Planning Enforcement in Ireland", published by the Department of Environment, Community and Local Government, states as follows:

"Generally speaking, all documentation relating to enforcement actions (including, for example, correspondence; planner's report to the Manager; Manager's decisions; representations made under section 152 of the Planning Act; warning letters; enforcement notices; notes on site visits, etc.) should be readily available to all parties directly involved and to the general public."

In these circumstance, I am not satisfied that the first two conditions necessary for section 35(1)(a) to apply are met. Furthermore, for similar reasons to those set out in respect of section 30, I do not accept that the disclosure of the record at issue would be likely to prejudice the giving to the body of further similar information from the same person or other persons in circumstances where it is in the interests of such persons to provide such information to the Council. Accordingly, I find that section 35(1)(a) does not apply.

Section 37
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential.

The record at issue consists of a response to a letter issued under section 152 of the Planning and Development Act 2000, prepared by a firm of consulting engineers on behalf of their client, a limited company. I am satisfied that the disclosure of the record would not disclose personal information for the purposes of the FOI Act. I find, therefore, that the Council was not justified in refusing access to the record under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision to refuse access to the record at issue under sections 30, 35 and 37 of the FOI Act, and I direct that the Council release the record to the applicant.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator