Whether the Council was justified in its decision to grant a request, to which section 38 of the FOI Act applies, for access to a letter the applicant sent to the Council in response to a planning enforcement warning notice

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

This review arises from the Council's decision to release correspondence pursuant to an FOI request to which section 38 of the FOI Act applies. Section 38 applies where the FOI body concerned has, at some stage in the decision-making process, considered that the record(s) in question qualify for exemption under any of sections 35, 36 and 37 of the FOI Act (regarding, respectively, confidential, commercially sensitive, or personal information) but that the record(s) should be released in the public interest. 

Where section 38 applies, the body is required to notify affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.

In this case, the Council received a request on 13 February 2017 for access to correspondence from the applicant or his agent regarding "planning enforcement matter EN16/171". In particular, the requester sought a letter, dated 28 November 2016, sent by the applicant to the "local authority". 

During the processing of that request, the Council formed the opinion that a letter dated 25 November 2016 from the applicant's solicitors to the Council contained commercially sensitive information within the meaning of section 36. It informed the applicant of its view that the public interest would be better served by release of the letter than by refusing access. The applicant argued that the letter should not be released, citing sections 31(1)(c) and 36(1)(b) of the FOI Act. He also argued that the record was protected under the Data Protection Acts. Having considered the applicant's submission, the Council considered that the letter did not contain commercially sensitive information and decided to release the letter. Subsequently, 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 letter at issue. I have also had regard to correspondence between the Council and both the applicant and the requester on the matter, and to communications between this Office and the applicant, the Council, and the requester in relation to this review. 

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to grant access to a letter from the applicant's solicitors to the Council in response to a warning letter concerning "planning enforcement matter EN16/171".

Preliminary Matters

Under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that the Council's decision to release the record at issue was not justified.

I also note that the applicant sought details of the person who made the request. As the FOI Act places no restrictions on the uses to which a released record may be put, release under
FOI is regarded, in effect, as release to the world at large. Furthermore, in considering a request, the reason or motive of the requester must be disregarded except in very limited circumstances. As such, the identity of the requester is generally irrelevant. 

Analysis and Findings

In his application for review, the applicant cited sections 36(1)(b) and 31(1)(c) of the FOI Act as a ground for refusing access to the record at issue. I am satisfied that the applicant intended to rely on section 36(1)(c) as opposed to section 31(1)(c). Accordingly I will consider the applicability of both section 36(1)(b) and 36(1)(c) to the record at issue. 

As I have outlined above, the applicant also argued that the record was protected under the Data Protection Acts. Section 1(5)(a) of the Data Protection Act 1988 (as amended) provides that:-  

"A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997."

Therefore, I do not accept the applicant's argument that the FOI request should be refused on the ground that the record is protected under the Data Protection Acts. However, it seems to me that the applicant's argument reflects a wider concern that the release of the record would disclose his personal information. As such, I will also consider the applicability of section 37 to the record.

Section 36(1)(b)
The letter at issue comprises the applicant's response to a warning letter issued to him by the Council regarding a particular planning enforcement matter. Section 36(1)(b) protects 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.

The applicant did not explain how the release of the record could possibly give rise to any of the harms identified in section 36(1)(b). He simply contended that the letter could assist an individual in an appeal against the planning permission granted, and that it could have a "damaging and detrimental effect" on his farming business because the development in question is essential to the growth of his farm. 

It seems to me that the applicant's concerns relate to the possibility of a detrimental decision being taken in relation to his compliance with planning legislation which, in turn, might affect his business. Having examined the record at issue, I fail to see how the mere release of the record, of itself, could possibly have a damaging and detrimental effect on the applicant's business. 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 a guidance document on planning enforcement, available on the website of the Department Housing, Planning and Local Government, entitled "A Guide to Planning Enforcement in Ireland" 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."

In my view, the applicant has not shown that the release of the record at issue could possibly give rise to any of the harms identified in section 36(1)(b). I find, therefore, that section 36(1)(b) does not apply.

Section 36(1)(c)
Section 36(1)(c) provides that access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The applicant has made no substantive arguments regarding the application of section 36(1)(c), apart from citing the section. He has not identified any contractual or other negotiations that might be affected by the release of the record, nor has he explained how release could prejudice such negotiations. I find, therefore, that section 36(1)(c) does not apply.

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the records concerned would involve the disclosure of personal information of individuals other than the requester. For the purposes of the FOI Act, "personal information" is defined under section 2 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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including information relating to the property of the individual

The record at issue contains details of the applicant's views as to why he considers that his farming business and the constructed buildings are in compliance with the planning legislation and the permission granted. As such, I accept that the disclosure of the record would disclose personal information relating to the applicant. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, including section 37(5)(a) which provides for the granting of a request where, on balance, the public interest in granting the request outweighs the public interest in protecting the privacy rights of the individual to whom the information relates.

I fully accept that the public interest in protecting privacy rights is strong. However, there is nothing inherently sensitive or private, in my view, in the record at issue. Indeed, as I have outlined above, the planning process is intended to be an open process. On the other hand, there is a public interest in enhancing the openness and accountability of planning authorities in how they deal with planning enforcement matters. In my view, given the nature of the record at issue, I find that the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the applicant in this case.

In conclusion, therefore, I find that the Council was justified in granting access to the record at issue. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to grant access to the record at issue 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