Case Number: 160442

Whether Irish Water was justified in refusing access to various records concerning a leak said by the applicants to have arisen at their neighbours' property

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

The applicants' solicitor acted on their behalf at all stages in the FOI process in this case. All references to "the applicants" in this decision may be taken as including references to their solicitor, as appropriate.

On 30 June 2016, the applicants made the following FOI request:

"1. First Fix Report re: [neighbours' address].
2. Report of crew who found or first inspected leak at [neighbours' address].
3. Report on nature of leak at [neighbours' address].
4. Report on how leak arose at [neighbours' address].
5. Assessment report as to how to deal with leak.
6. Locus report re leak at [neighbours' address].
7. Post fix report on leak at [neighbours' address].

Irish Water issued its decision on 16 August 2016. It refused access to the requested records under section 37 of the FOI Act on the basis that they contained "personal information in respect of [the property referred to in the request] and its owners."

The applicant sought an internal review of this decision on 6 September 2016. On 28 September 2016, Irish Water issued its internal review decision. It said that the record sought at part 4 of the request does not exist, and refused access to it under section 15(1)(a). It upheld its application of section 37 to the rest of the records, and also relied on section 35 (the exemption concerning confidential information) in relation to those records.

On 12 October 2016, the applicants sought a review by this Office of Irish Water's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, Irish Water, and the applicants. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not Irish Water has justified its refusal to release the records, except for that sought at part 4. The applicants' submission to this Office of 1 November 2016 said that they did not take issue with Irish Water's application of section 15(1)(a) to the record concerned.

Preliminary Matters

It is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Findings

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...

Section 2 goes on to list 14 examples of personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. One such example is "information relating to the property of the individual".

The applicants say "it is undisputed that there was a repair carried out under the First Fix scheme", which they say they understand can only be utilised to fix repairs where a leak is identified on an external supply pipe. They contend that the records at issue concern a leak at a boundary box water meter outside of their neighbours' house, or a leak between that box and the boundary of the property at their neighbours' house i.e. at an area "clearly within the control of Irish Water." They argue that, in such circumstances, the records cannot contain personal information.

Irish Water says that while the repair and maintenance of pipework on a customer's property is, and always has been, the property owner's responsibility, the First Fix scheme provides assistance to repair leaks on a customer's property (with the consent of the customer). Accordingly, it is not the case that repairs carried out under the First Fix scheme can only ever be on areas under Irish Water's control.

I am constrained in the description I can give of the details that Irish Water has withheld under section 37. However, I am satisfied, and find, that they are exempt under section 37(1) of the FOI Act. In making this finding, it appears from the records, and from Irish Water's submissions, that Irish Water did not find a leak at the meter boundary box or between the box and the boundary of the property of the applicants' neighbours' house. In the circumstances, I am not required to make a finding on whether or not disclosure of records concerning a leak at such a location would disclose personal information of third parties.

I should also say that most of the withheld records are photographs, a small number of which appear to concern only the meter boundary box. Irish Water's position appears to be that all of the photographs should be seen as a composite record. I agree. If I was dealing with a report that was based on, or which referred to, each photograph, I would not consider it in keeping with section 18 to direct the release of those excerpts that concern the meter boundary box alone, even if I were satisfied that this would not disclose third party personal information.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicants; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that 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)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor have the applicants made any argument in this respect.

Section 37(5)(a) - The Public Interest

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26) (the Rotunda case), indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. " Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

In this case, there is a public interest in ensuring that Irish Water is open about, and can be held accountable for, how it carries out its various functions. The applicants consider there to be a further relevant public interest, i.e. in ensuring that public mains leaks are properly investigated and repaired, in which respect they say that leaks have the potential to affect a large class of people and cause significant damage. I consider this to be, essentially, encapsulated in the true public interest that I have already identified as relevant in this case. That said, the fact that a large number of persons and businesses may be affected by leaks does not render any private interest, which the various members of such a group may have in obtaining access to relevant records, a "true" public interest.

The applicants contend that the information in the withheld records is not personal information and that the public interest in protecting such information has no weight accordingly. However, I have already found the records sought by the applicants to be exempt under section 37(1). Both 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). Furthermore, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

When considering section 37(5)(a), 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 accept that release of the details concerned would enhance the public interest in openness and accountability regarding the steps taken by Irish Water to remedy the leak concerned. However, I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld. I find accordingly.

There is no need for me to consider the application of section 35 in the circumstances.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Irish Water's refusal of the applicants' request.

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.

Elizabeth Dolan
Senior Investigator