Case Number: 160565

Whether the Council was justified in its decision to redact certain information from nine audit reports under various provisions 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 12 May 2016, the applicant made a request to the Council for access to nine specific internal audit reports. On 9 June 2016, the Council granted partial access to the reports sought. On 11 July 2016, the applicant sought an internal review of the decision, following which the Council decided to affirm its original decision. On 19 December 2016, the applicant sought a review by this Office of that decision.

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 records sought, to the correspondence between the parties, and to the correspondence between this Office and both parties.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in its decision to grant only partial access to the records sought. I note that the applicant stated in his application for review by this Office that he does not require "the names of individuals or personal information". Therefore, any such information falls outside of the scope of this review.

Preliminary Matters

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 FOI body shows to the satisfaction of this Office that its decision was justified. Therefore, there is a presumption in favour of the release of a record that is the subject of a request for access, and this presumption will only be rebutted if the FOI body satisfies this Office that its decision to refuse access to the record was justified.

When making its original decision on the applicant's request, the Council prepared a schedule of records for the applicant in which it identified certain parts of the records it considered exempt and the sections of the FOI Act that it considered to apply to those parts. The sections of the Act relied upon included sections 29(1)(a), 32(1)(a)(iii), 36(1)(b) and 37(1). However, the decision letter itself gave little detail of its reasons for relying on those exemptions. For example, it did not explain how the release of certain parts of the records might, in the Council's view, give rise to certain harms identified, nor did it explain why the Council considered that the public interest would not be served by releasing certain parts where the Act requires the consideration of a public interest balancing test. The internal review decision letter contained no further explanation for refusing to grant access to the records in full.

On 31 January 2017, Simon Noone, Investigator with this Office, invited the Council to make a submission in support of its decision. In his letter, Mr Noone drew the attention of the Council to section 22(12)(b) and explained that failure to justify a claim for exemption may lead to a decision by the Commissioner to release the records at issue. He also invited the Council to address specific questions to assist the Council in the formulation of its submission. This Office has not received a response to this invitation and therefore the only justification before me for the Council's decision is its original decision letter of 9 June 2016 to the applicant.

Analysis and Findings

The audit reports that are the subject of this review are titled as follows:

1. Miscellaneous Income Dungarvan Town
2. Local Enterprise Office
3. Harvest Festival 2015
4. Review of receipting at Customer Care Desk
5. Shared Ownership
6. Parking Permits
7. Parking Meter Income
8. Veterinary Inspection Services
9. Dog Shelter

I will consider each record separately.

Record 1
The Council came into operation on 1 June 2014 following a merger of Waterford City Council and Waterford County Council and the dissolution of the former Dungarvan, Tramore and Lismore Town Councils. This audit report, dated February 2015, concerned the collection of miscellaneous income generated in the former Dungarvan Town Council. The objectives of the audit are described in the report as being to give an assurance to management that the collection of that miscellaneous income had been delegated to the relevant sections under the merged authority.

The Council redacted certain information from the record under section 29(1)(a), which is a discretionary exemption aimed at protecting the deliberative processes of FOI bodies. That section allows an FOI body to refuse to grant a request if the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes, and the body considers that the granting of the request would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Council argued that it applied the exemption where the sections of the document relate to the context of the internal reports which were undertaken by the organisation in the direct aftermath of the amalgamation. I must admit that it is not clear to me how information that relates to the context in which the reports were undertaken can reasonably be described as a matter relating to the deliberative processes of the Council. Furthermore, the Council has not identified any particular deliberative process that might apply. Having examined the record, I fail to see how the redacted information relates to the deliberative processes of the Council. Rather the redactions comprise, in the main, factual information concerning the various income sources. Even if I had found the information to comprise matter relating to the Council's deliberative processes, the Council made no effort to show why it considered that the release of the information would be contrary to the public interest. I find, therefore, that section 29(1)(a) does not apply to the redacted information.

Record 2
This record is described as a review of the financial operations of the Local Enterprise Office. The Council relied upon section 29(1)(a) to redact a small amount of information in the main report, as well as the entirety of the appendix, using the same argument outlined in respect of record 1 above. As the Council has failed to identify any particular deliberative process to which the redacted information relates, I find that section 29(1)(a) does not apply.

Record 3
This report, dated December 2015, is described as a review of (i) the policies and procedures in respect of the management of running of the 2015 Harvest Festival and (ii) the controls in operation concerning the collection of revenue from chargeable events and procurement procedures. The Council redacted certain information under sections 29(1)(a) and 36(1)(b). For the same reasons as I have outlined above, I find that section 29(1)(a) does not apply

The redactions on page 8 of the report comprise the names of certain individuals who acted, in a voluntary capacity, as committee members for the Harvest Festival. As the applicant has indicated that he does not require the names of individuals or personal information, I have not considered this redaction further.

The redactions from page 10 comprise the amount of sponsorship provided by certain named businesses and details of the payments for an unnamed sponsorship manager. Section 36(1)(b) provides for the refusal of a request if the record sought contains financial, commercial, scientific, technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(3) contains a public interest balancing test.

In its decision letter, the Council merely recited the wording of subsection (1)(b) and stated that it was applying the exemption "as commercially sensitive information is contained in the relevant record." It did not provide any further information, nor did it address the public interest test. It did not, for example, explain why it considered that the release of the information at issue could give rise to the harms set out in the subsection. I fail to see how the release of the information could possibly give rise to any of the harms set out. I find, therefore, that section 36(1)(b) does not apply.

Record 4
Record 4 is described as a review of the controls for receipting and collecting income at the Council's Customer Care Offices. The majority of the record was redacted on the basis of section 32(1)(a)(iii). This is a discretionary exemption that provides for the refusal of a request if the body considers that access to the record concerned could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons or property.

This provision is not directly concerned with the safety or security of persons and property. Indeed, subsection (1)(b) of section 32 is concerned with the protection of information the disclosure of which could reasonably be expected to endanger the life or safety of any person. Rather, this provision is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Where, for example, a system operates to ensure safety and that system could reasonably be expected to be prejudiced or impaired, then this exemption may be relevant.

The Council stated that it applied the exemption where the information relates to "procedures for the handling of cash by the organisation and the release of same information could be reasonably expected to impair safety or security of persons, i.e. individual staff members". This appears to be an argument that the Council's cash handling procedures are concerned, among other things, with ensuring the safety of its staff, and that the release of the information redacted from the record at issue could reasonably be expected to prejudice or impair those procedures.

For the section to apply, the body must be in a position to show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified. In this case, therefore, the Council must show how the release of the redacted information could reasonably be expected to prejudice or impair the procedures it has in place for ensuring the safety of its staff.

I have carefully examined the record at issue. The vast majority of the information redacted from the report is generally concerned with the internal controls in place to ensure proper accounting for monies received. I do not accept that the release of such information could reasonably be expected to prejudice or impair the procedures the Council has in place for ensuring the safety of its staff. However, there is a small amount of information which is concerned with the procedures in place for handling cash and which I accept to be exempt from release under section 32(1)(a)(iii), as follows:

• Page 9: All text under the heading "Custody and Transit of Monies"
• Page 11: The first two sentences and the second last sentence under the heading "Municipal Golf Course Receipts"
• Page 11: The first two sentences under the heading "Regional Sports Centre Receipts"

Record 5
This is an audit report dated June 2015 concerning the operation of shared ownership loans issued by the Council. The Council redacted certain information from the record under section 37(1) on the ground that it comprised personal information. While the applicant has indicated that he does not require access to any personal information, I must consider whether the information redacted can properly be described as personal information.

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 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, (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, and (xiii) information relating to property of the individual.

The record contains details of loans held by certain individuals. While no names of borrowers are included in the report, I am satisfied that the release of certain details about the loans, including numbers, term periods and addresses would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that the following information constitutes personal information, and is out of scope:

• The entire table on page 11
• The addresses in the table on page 14
• The addresses in the table on page 15
• The addresses in the table on page 16

I do not accept that the release of the remaining information would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, the section 37(1) does not apply to that information.

Record 6
This report is described as a review of the controls and procedures involved in issuing parking permits. Information was redacted from the record under section 29. The redacted information generally comprises audit findings. As with records 1 to 3 above, the Council has not identified any particular deliberative process to which the redacted information relates, I find that section 29(1)(a) does not apply.

Record 7
Record 7 comprises a review of the management of income from the Council's pay and display parking system, dated October 2015. While the Council has redacted a variety of information, it cited only section 32(1)(a)(iii) in support of those redactions. I have already explained how this Office interprets the exemption in respect of record 5 above. In my view, the Council has failed to demonstrate that the release of this information could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. I find, therefore, that section 32(1)(a)(iii) does not apply. For the sake of completeness, I note that some of the redactions comprise the identities of third party companies. However, I am satisfied that the release of this information would not affect their interests and that this Office was not required to notify the companies of the review.

Record 8
A small amount of information was redacted from record 8, which is an audit of the billing and recoupment process for the veterinary inspection service, dated July 2015. The Council has not identified the exemption applied to redact the information. However, as the redactions concern payments to certain individuals, it seems to me that the exemption for personal information is most relevant.

Under section 2 of the Act, personal information does not include the terms upon and subject to which a staff member holds a position, or information relating to the terms of contract of a service provider. The first two of the three redactions from the record comprise specific salary payments made to a staff member. This Office does not consider such specific information to fall with the exclusion to the definition of personal information. As such, I am satisfied that the redactions comprise personal information relating to identifiable individuals and are therefore outside the scope of this review.

The final paragraph on page 9 is concerned with payment arrangements for an individual who is engaged by the Council as a service provider. I am satisfied that this information is not personal information and that section 37(1) does not apply.

Record 9
This is a review of the administration and financial processes in operation at the Council's dog shelter, dated September 2015. Information has been redacted from this record under section 32(1)(a)(iii). I am satisfied that the Council was justified in redacting information from pages 1 and 6 of the report under section 32(1)(a)(iii). However, the Council has failed, in my view, to demonstrate that the release of the remaining redactions could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. I find, therefore, that section 32(1)(a)(iii) does not apply to those redactions.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Council. I direct the release of the records as follows:

Record 1: Release in full

Record 2: Release in full

Record 3: Release apart from redactions on page 8 which are outside scope

Record 4: Release apart from the following information which I find to be exempt under
section 32(1)(a)(iii)

• Page 9: All text under the heading "Custody and Transit of Monies"
• Page 11: The first two sentences and the second last sentence under the heading "Municipal Golf Course Receipts"
• Page 11: The first two sentences under the heading "Regional Sports Centre Receipts"

Record 5: Release apart from the following information which is outside scope:

• The entire table on page 11
• The addresses in the table on page 14
• The addresses in the table on page 15
• The addresses in the table on page 16

Record 6: Release in full

Record 7: Release in full

Record 8: Release apart from the following information which is outside scope:

The redaction on page 5
The first redaction on page 9

Record 9: Release apart from the redactions on pages 1 and 6 which I find to be exempt under section 32(1)(a)(iii)

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