Case Number: 160085

Whether the Council was justified in its decision to refuse the applicant's request for access to the name and address of an individual who expressed an interest in purchasing land from the Council

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 30 October 2015, the applicant sought access to correspondence relating to expressions of interest in buying a particular piece of land that he had recently purchased from the Council. In issuing its decision on 9 November 2015, the Council released edited versions of the relevant correspondence to the applicant (one letter of expression of interest and the Council's letter of acknowledgment of same). The name and part of the address of the interested party were redacted on the ground that they comprise the personal information of a third party.

Following a request on 19 November 2015 for an internal review of that decision, seeking unedited versions of the records, the Council affirmed its original decision on 8 December 2015. On 19 February 2016, the applicant applied to this Office for a review of that decision.

During the course of the review, the applicant was invited to make a submission on the matter but no such submission was received. I have decided to conclude this review by way of a formal binding decision. In concluding this review, I have had regard to correspondence between the applicant and the Council, to correspondence between the applicant and this Office, to correspondence between the Council and this Office, and to the content of the records at issue.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the name and part of the address of a third party in the records at issue on the ground that they comprise the personal information of a third party.

Analysis and Findings

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 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 their 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 fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(ii) information relating to the financial affairs of the individual" and "(xiii) information relating to property of the individual...".

In my view, the name and personal address of an individual is generally considered personal information. I also consider that a private address is generally held on an understanding of confidence. Furthermore, it appears to me that the records relating to the expression of interest can be said to contain information relating to the financial affairs of the third party in question. Having regard to the definition of personal information, as set out above, and having reviewed the records at issue, I am satisfied that the withheld information is personal information relating to a party other than the applicant and that section 37(1) of the Act therefore 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).

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption under section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where, on balance:

(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 information would be to the benefit of the person to whom the information relates.

No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third party concerned. I therefore find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

I should point out at this stage that the decision letters issued by the Council to the applicant gave no indication of any consideration being given to where the balance of the public interest lay in this case. In this regard, the Council's attention is drawn to its obligation to ensure that all future decisions provide appropriate details of its consideration of the public interest, where required.

In relation to the issue of the public interest under section 37(5)(a), it is important to take note of the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner (more commonly referred to as The Rotunda Hospital -v- the Information Commissioner [2011] IESC 26). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions. However, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 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"). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under 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 note from the comments of the Supreme Court in the Rotunda case that there is a distinction to be drawn between what constitutes a public interest and what is purely a private interest. In this case, the applicant has expressed what appears to be a private interest in accessing the name and address of the interested party. In his request to the Council for an internal review, he stated that his purchase of the land in question had been subject to public discussion, including press coverage, and that the correspondence at issue had been brought to the Council's attention during a public meeting. Therefore, he expressed that he desired the withheld information, in order to establish a fair and equitable situation as regards the interested party.

I am of the opinion that the public interest in this case has been met to large degree by the release of records without identifying the third party. I must also consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large" because the Act places no restrictions on the subsequent uses to which the record may be put. I do not consider that the public interest in the release of the refused information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individual to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I am satisfied that the Council was justified in its decision to refuse access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council in this case.

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