Case Number: 150322

Whether the refusal of access by the Council to records concerning an area in Newcastle West is justified under sections 30(1)(c), 32(1)(a)(iv) and 37(1) of the FOI Act

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

Background

On 17 June 2015 the applicant made an FOI request to the Council for all records relating to the Market Yard in Newcastle West, including, "without limitation", maintenance and engineering records and records of complaints, within the previous six years. On 27 July 2015, the applicant restricted the scope of the request to such records for the years 2013, 2014 and 2015. (In subsequent correspondence with this Office during this review, the applicant clarified that they did not seek records relating to legal proceedings, but did seek records relating to maintenance and complaints regarding the Market Yard.) By letter dated 25 August 2015, the Council refused access to the records on the basis that they were exempt from release under section 32(1)(iv) (sic) of the FOI Act. On 28 August 2015, the applicant applied for an internal review in respect of the records. On 21 September 2015, the Council issued its internal review decision, in which it affirmed its original decision, under sections 32(1)(a)(iv) and 35(1)(b) of the FOI Act. On 25 September 2015, the applicant applied to this Office for a review of the Council's decision.

The applicant acted through their solicitor in their dealings with the Council and this Office in this FOI request.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the submissions of the Council and the applicant; the content of the withheld records, provided to this Office by the Council for the purposes of this review and to the provisions of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

The Council's decision-making in this case fell far short of what is required under the FOI Act. First, in neither its original nor internal review decision did the Council provide the applicant with a proper statement of reasons. In its internal review decision, in addition to citing exemptions under the FOI Act, the Council stated "the reason for this refusal is based on legal advice". Accordingly, on 13 January 2016, this Office exercised its power under section 23 of the FOI Act to direct the Council to provide a statement of reasons. This Office reminded the Council that the mere fact that a decision to withhold records is based on legal advice does not qualify as an exemption under the FOI Act and I would emphasise that point to all FOI bodies. I note also that the required public interest balancing test does not appear in the decisions on the relevant exemptions. Also, while the FOI Act does not require a schedule of records, it is clearly best practice to provide the requester with a list of the records held.

By letter dated 4 February 2016, the Council provided this Office with a statement of reasons, enclosing two revised schedules of records. It issued the statement and the schedules to the applicant by letter dated 19 February 2016. The Council's statement of reasons relied on sections 30(1)(c), 32(1)(a)(iv), and 37(1) of the FOI Act. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions. I encourage decision-makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by this Office, to assist them in their decision-making process.

Secondly, the background to this case may help to put in context the Council's justification for refusing access to the records. The applicant claims to have suffered personal injuries as a result of falling in the Market Yard. The applicant may be pursuing the matter through legal proceedings. The Council's submissions to this Office indicate that it believes that these circumstances have motivated the applicant's FOI request. However, it is important to emphasise that, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.

Thirdly, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified.

Scope of the Review

The scope of my review concerns the records for 2013 - 2015 which relate to the maintenance of, and complaints about, the Market Yard, excluding records relating to legal proceedings. For the avoidance of doubt, those records are: records 3, 7, 8 (from the word "MINUTES" to "signed" at the end of point 1 on page 1 and the question and answer at paragraph (iv) on pages 4 and 5, insofar as it relates to the Market Yard) and 9 (the parts highlighted by the Council in a copy provided to this Office by email dated 5 April 2016, excluding reference numbers and company names) on schedule 1. In relation to the part of the records that comprises minutes of a Council meeting, my understanding is that such content is available to the general public e.g. on the Council's website. However, as I have no evidence that this is the case in respect of the 2013 minutes involved, I will deal with record 8 within the scope of the review. The question I must address is whether the Council was justified in refusing access to these records, or parts of records, under sections 30(1)(c), 32(1)(a)(iv), and 37(1) of the FOI Act.

Analysis and Findings

Section 30(1) - functions and negotiations

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

...

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body".

The Council invokes section 30(1)(c) in this case. Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

The Council submits that releasing the records would prejudice future negotiations in relation to the applicant's legal proceedings by disclosing negotiation positions taken by the Council. It submits that the applicant has failed to particularise their injury and identify precisely where the alleged accident took place. It further submits that releasing the records raises the potential for falsification or enhancement of claims and that any public interest arguments which favour release are outweighed by the public interest in preventing this. The Council says that it does not suggest that such falsification is the case with the applicant's claim, but that this is a relevant public interest consideration.

I accept that in the future, the Council may enter into negotiations in relation to legal proceedings by the applicant. I am therefore willing to proceed on the basis that section 30(1)(c) could potentially apply insofar as negotiations to be carried on have been identified.

Records 3 and 7 are one to two sentence-long diary entries of complaints about alleged accidents in the Market Yard. Record 8 contains the minutes of a Council meeting at which a Councillor raised a question about the maintenance of the Market Yard. Record 9 relates in part to maintenance of the Market Yard. The Council has not pointed me to any negotiating positions which any of these records disclose and such positions are not apparent to me. I find that section 30(1)(c) does not apply and I am therefore not required to go on to consider section 30(2) of the FOI Act. Accordingly, I find that the Council has not justified its refusal of access to the records under section 30(1)(c) of the FOI Act.

Section 32(1)(a)(iv) - law enforcement and public safety

Section 32(1)(a)(iv) provides that

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice or impair -

...

the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal".

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of legal proceedings. When relying on this provision, the FOI body should show how or why releasing the withheld information at the time of the Commissioner's review could reasonably be expected to harm the fairness of the proceedings. The making available by an FOI body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing. The Commissioner has accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

The Council submits that releasing the records is expected to significantly harm the conduct of the personal injury proceedings threatened by the applicant. It says that access to the records would place the applicant in a much more advantageous position and would impede the Council's preparation of its own defence. The Council cites a previous decision by the Commissioner in support of its position: Case 110238 (Mr X and the Office of the Revenue Commissioners). (Although the Council refers to "Case 98102", the passage which it cites in its submissions is in fact Case 110238).

Although I am not legally bound by the Commissioner's previous decisions, I would like to say why I consider the case cited by the Council to be distinguishable. Case 110238 concerned the potential disclosure of expert reports and the Revenue's own analyses and thoughts on these reports and relevant issues. The Commissioner concluded that the disclosure of such records would disclose aspects of the case that the Revenue might wish to put before the Appeals Commissioner, thereby prejudicing the fairness of the relevant legal proceedings.

However, in this case, the Council has not demonstrated how any of the records could disclose aspects of its thinking on, or strategy for, legal proceedings by the applicant or indeed any information which could prejudice the fairness of proceedings.

I would add one final comment. The Council's correspondence with the applicant and this Office suggests that it does not believe that the applicant should be allowed to access records under the FOI Act which may relate to a legal claim being brought by the applicant. However, in Case 020179 (Organisation A and the Department of Arts, Sport and Tourism) the former Commissioner made the following observation, which I consider to apply equally to this case:

"I am aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery".

She cited H.(E.) v Information Commissioner [2001] IEHC 58, in which O'Neill J commented:

"I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery".

In the circumstances, I find that the Council is not justified in refusing access to the records under section 32(1)(a)(iv) of the FOI Act.

Section 37(1) - personal information

Section 37(1) of the FOI Act provides that access to a record shall be refused if it 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 (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 as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of (a) and (b) above. Following the decision in Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26, I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv), which are non-exhaustive.

The Council submits that records 3 and 7 contain personal information relating to third parties who are non-employees of the Council and that these people's right of privacy outweighs the public interest considerations in favour of release.

Record 3 contains the name and telephone number of a complainant and record 7 contains the names of two complainants. I find that this information constitutes personal information within the meaning of section 2 of the FOI Act.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in relation to the personal information contained in records 3 and 7. That is to say, (a) the information does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) of the FOI Act provides that access to personal information may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would be to the benefit of the person to whom the information relates.

I am satisfied that releasing the records would not benefit the individuals to whom the information relates, so that section 37(5)(b) does not apply.

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

I consider that in this case, the public interest in openness and transparency in relation to the Council's functions is served by releasing the records without the inclusion of personal information and that the public interest in upholding the right to privacy of the individuals to whom that personal information relates is not overridden. I therefore find that the Council is justified in refusing access to those parts of records 3 and 7 which constitute personal information.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary its decision. I annul its decision in respect of the records within the scope of this review and direct their release, subject to the redaction of the personal information contained in records 3 and 7 and referred to above.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator