Case Number: 170021

Whether the PRA was justified in its decision to refuse access to a specified Instrument under section 41 of the FOI Act on the ground that disclosure of the record is prohibited by the Land Registration Rules 2012

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 1 September 2015, the applicant made a request to the PRA for a certified copy of a specified Instrument. On 8 September 2015, the PRA refused the request on the ground that disclosure of the record sought is prohibited by the Land Registration Rules 2012. On 9 September 2015, the applicant sought an internal review of that decision. The PRA failed to respond to the request for an internal review within the requisite time period. Following further communication from the applicant, the PRA issued an internal review decision on 29 September 2016, wherein it upheld its original decision. On 12 January 2017, 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 record sought, to the correspondence between the applicant and the PRA, and to the correspondence between this Office and both the applicant and the PRA on the matter.

Scope of the Review

This review is concerned with whether the PRA was justified in its decision to refuse access to the specified Instrument under section 41 of the FOI Act.

Preliminary Matters

The significant delay by the PRA in responding to the applicant's request for an internal review is very regrettable. While it was open to the applicant to treat the PRA's failure to issue an internal review decision within the statutory time-frame as a deemed refusal and to apply to this Office for a review of that refusal, he was clearly unaware of that fact. The PRA stated that the person who was handling the internal review request retired, and the matter was not dealt with until the applicant made further representations in September 2016. While this does not excuse the delay, I note that the PRA fully apologised to the applicant when it became aware of the matter.

In his submissions to the PRA and to this Office, the applicant has made a number of claims and allegations about, amongst others, the PRA, together with other parties. It is important to note that this Office is not a general appellate body and is limited solely to considering requests for reviews of decisions of bodies under the FOI Act. The PRA has stated that it has previously advised the applicant that he is entitled to appeal a substantive decision of the PRA to the courts.

Findings

The PRA argued that it is prohibited from allowing access to an Instrument of the type sought except in accordance with Rule 159 of the Land Registration Rules 2012 (SI 483/2012) and that the record was therefore exempt from release under section 41(1)(a) of the FOI Act. Section 41(1)(a) provides for the mandatory refusal of a request for a record if the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule).

The Land Registration Rules 2012 are not listed in Schedule 3 and are therefore relevant for the purposes of section 41. The question I must consider, therefore, is whether the release of the Instrument sought is prohibited by Rule 159.

Rule 159(1) provides that the registered owner of property and any person authorised by such owner, or by an order of the court or by these Rules, but no other person, may inspect a document filed in the Registry (the predecessor to the PRA) on a dealing or transaction with the property of the owner. Rule 159(8) provides that any person entitled to inspect a document filed in the Registry may obtain a copy of it.

The applicant is not the registered owner of the relevant property in this case. While he has argued that the property has been fraudulently registered, the fact remains that the property is registered in the name of a third party. This Office has no role in examining the manner in which the property was registered.

Rule 159 prohibits disclosure of a record such as the Instrument sought in this instance, unless it is (i) sought by the registered owner of the property, (ii) sought by any person authorised by the registered owner, (iii) pursuant to an order of the court, or (iv) pursuant to the Rules. The applicant has presented no evidence to suggest that any of the circumstances at (i) to (iv) arise in this case. I am satisfied therefore that disclosure of the Instrument is prohibited by Rule 159, and that, as a result, it is exempt from release under section 41(1)(a) of the FOI Act

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the PRA to refuse access to the specified Instrument under section 41(1)(a) of the FOI Act.

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