Whether the Council was justified in its decision to refuse a request for access to records concerning a notice issued in relation to a protected structure under section 32(1)(a)

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

In March 2015, the Council issued notices under section 59 of the Planning and Development Act 2000 in respect of a certain protected structure. On 24 September 2015, the applicant sought access to all documents relating to those notices and any subsequent communication. On 23 October 2015, the Council refused the request. On 4 November 2015, the applicant sought an internal review of the Council's decision. On 19 November 2015, the Council affirmed its original decision. On 23 November 2015, the applicant sought a review of the decision by this Office.

During the course of this review, Simon Noone of this Office notified the owners of the protected structure of the review and invited them to make submissions on the possible release of records. No response has been received to this invitation. Therefore, I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the applicant and the Council, and to the provisions of the FOI Act.

Scope of the Review

During the course of the review, the Council provided this Office with a schedule of 30 records it considered to come within the scope of applicant's FOI request. In referring to the records at issue, I have adopted the numbering system used by the Council in that schedule.

As records 28 and 29 were created after the FOI request was made, I have excluded them from the scope of this review. Furthermore, record 30 contains information relating to properties other than the protected structure. Accordingly, I have excluded those parts of record 30 that do not relate to the protected structure. The scope of this review is concerned with whether the Council's decision to refuse access to records 1 to 27 and part of record 30 was justified.

Findings

Section 32(1)(a)
The Council refused access to the records under parts (i) and (ii) of section 32(1)(a). Section 32 is a discretionary exemption which allows an FOI body to refuse a request where access to the record could reasonably be expected to 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, or (ii) the enforcement of, compliance with or administration of any law.

In its submission to this Office, the Council stated that its "policy in relation to requests under Freedom of Information legislation in respect of live Enforcement Files has been to refuse. This policy was adopted in light of the guarantee of confidentiality given to the complainants in such cases...Where investigations are concluded and the files are closed requests under Freedom of Information Legislation are considered in a different light and may be granted with deletions."

In respect of the records at issue in this case, the Council stated that "The release of the file might prejudice or impair the investigation of the complaint. The release of the file might prejudice or impair the enforcement of Part 4 of the Planning & Development Act 2000 (as amended). The nature of the prejudice or impairment expected is the threat of compromising the chances of success in bringing a resolution to the subject matter of the complaint up to and including the taking of legal proceedings. The release of the file might result in the details of the case becoming public knowledge before any decision is taken on what action is appropriate in the case. This could result in unfair treatment of all persons affected/associated with the case. A decision to institute legal proceedings has not yet been taken neither has a decision been made on taking legal proceedings at a future date."

As a general point, the Council is not entitled to adopt a general policy to refuse all FOI requests for access to records concerning "live enforcement files". Section 11(1) of the FOI Act provides that "Subject to this Act, every person has a right to and shall, on request therefor, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access." The Act does not provide for a mandatory exemption or exclusion of planning enforcement files as a class. The Council is obliged to consider each request and to release the records sought, unless an appropriate exemption is applicable.

Where an FOI body refuses a request under section 32(1)(a), this Office expects the body to identify the potential harm to the matters specified in the relevant sub-paragraph
that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified. Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies this Office that its decision was justified. Therefore, a mere assertion of an expectation of harm is not sufficient to defeat the presumption in favour of release created by section 22(12)(b).

While the Council has argued that the release of the records at issue in this case could compromise the chances of success in bringing a resolution to the subject matter of the complaint up to and including the taking of legal proceedings and/or could result in unfair treatment of all persons affected/associated with the case, it has not explained how such harms could occur by the release of the records at issue, nor has it explained why such harms could reasonably be expected to occur. I should add that having considered the records, I am not satisfied that their release could reasonably be expected to result in the harm envisaged by section 32(1)(a)(i) and (ii). Accordingly , I find that the Council was not justified in its decision to refuse access to the records at issue under section 32(1)(a).

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 provides that personal information includes information relating to the financial affairs of an individual, and information relating to property of an individual. The exemption is subject to a public interest balancing test (section 37(5)(a)).

The protected structure is owned by a partnership. I note that record numbers 4, 16 and 24 include information about the financial affairs of members of the partnership, and I am of the opinion that this is personal information relating to the members of the partnership. I also note that record numbers 1, 4, 12, and 13 include the personal addresses (as opposed to the business/legal address) of members of the partnership, and I consider that this also constitutes personal information.

There is nothing before me to suggest that any of the exceptions set out in section 37(2) are applicable in this instance. Additionally, I do not believe that the granting of the request for access would benefit those individuals as required by subsection (5)(b). Therefore, I believe that the remaining issue for me to consider is the public interest test as stated in subsection (5)(a).

The right to privacy has a constitutional dimension, as one of the unenumerated personal rights under Article 40.1 of the Constitution. Privacy rights will therefore 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 do not consider that the public interest favouring release of the personal information relating to the members of the partnership is compelling, and I am satisfied that the public interest in protecting their privacy is stronger in this instance. Therefore, I find that the following personal information should be redacted from the records:

Record 1 - Recipients' address on page 3.
Record 4 - Final sentence of first paragraph; Personal (not legal) address of partnership members in final paragraph.
Record 12 - Fifth and sixth addresses on page 1; Corresponding addresses on pages 3 and 4.
Record 13 - Recipients' addresses on pages 9 and 11.
Record 16 - Second and third paragraphs of letter.
Record 24 - Second paragraph of email.

For the avoidance of doubt, I do not consider that, other than the excerpts referred to above, the records otherwise contain personal information relating to the members of the partnership. However, even if I was of the opposite view, I would be satisfied that the public interest would favour the release of the records, save for the limited redactions already applied. On this point, it is noteworthy that 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."

Decision

Having carried out a review under section 22(2) of the Act, I hereby annul the Council's decision and direct the release of the records subject to the redaction of a limited amount of personal information relating to third parties.

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.

 

Stephen Rafferty
Senior Investigator