Case Number: 170320

Whether the Council was justified in its refusal to grant access to Planning Reference Numbers (PRNs) relating to the refund of general planning contributions by the Council from 2007 to 2017

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

On 27 March 2017, the applicant sought access to "[d]etails of all general planning contribution refunds given by Cork County Council over the last 10 years". He stated that he sought PRNs and a planning development description for each permission where a full or partial refund had been issued by the Council. He also sought the reason/justification for each refund.

The Council issued a decision on 26 April 2017, wherein it stated that it was granting partial access to the record sought. The Council provided the applicant with a spreadsheet containing the relevant date, development type, contribution type and reason for refund. It withheld the PRN in each case on the basis of section 37 (personal information).

The applicant made an internal review request on 15 May 2017, stating that the Council had failed to provided PRNs, a description of the planning development or sufficiently detailed reasons/justification for each refund. He indicated that he did not agree that the release of individuals PRNs would reveal personal, confidential or financial information and that "all information relating to planning matters" should "be made available on a public file".

The Council's internal review decision, which issued on 2 June 2017, refused to release any further information on the basis of sections 36 (commercially sensitive information) and 37. On 19 June 2017, the applicant sought a review by this Office of the Council's decision.

I note that during the course of the review, Ms Sandra Murdiff of this Office informed the applicant of her view that there was no requirement on the Council to create a record in response to an FOI request. She also informed him of her view that the Council was justified in refusing to grant access to PRNs on the basis of section 37(1) of the Act and invited him to comment. In his response on 12 October 20174, the applicant indicated that he accepted that there was no obligation on the Council to create records relating to his FOI request. He also indicated that he accepted that no (single) record containing all the information sought by him existed. However, he did not agree that the Council was justified in refusing access to the PRNs in the record created by the Council on the basis of section 37 of the Act.

Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council, as well as the contents of the record concerned.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse access to details of PRNs on the basis of section 37 of the FOI Act.

Preliminary Matters

It is important to note that while the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. In this case, the applicant sought specific information relating to refunds of general planning contributions by the Council from 2007 to 2017, including PRNs. The Council provided the applicant with certain information that it had collated. However, the Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. The applicant has accepted this.

I note that the applicant referred to a perceived conflict of interest involving Council personnel. I also note that it is common practice that staff in public bodies are FOI decision makers in the areas/departments in which they work. In any event, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Analysis and Findings

The applicant has accepted that the Council was not obliged to create a new record in response to his request. However, he argued that the record created by the Council should be considered for release. From the copy of the spreadsheet provided to this Office for the purposes of this review, it is clear that when the Council created the record at issue, it contained the relevant PRNs. In the circumstances of this case, while I reiterate that the Council was under no obligation to create this record, I have decided to consider it as part of this review.

The Council refused to release the information concerned on the basis of sections 36 and 37 of the FOI Act. Having examined the record at issue carefully, it is clear that the vast majority of the refunds listed in the spreadsheet relate to single dwellings (242 out of 334). These seem likely to refer to individuals rather than businesses or companies. Furthermore, of the remainder, it is not possible to tell from the record which items refer to individuals or indeed sole traders or businesses which are closely related to identifiable individuals. Accordingly, I am of the view that section 37 is of most relevance to the information withheld. Therefore I shall first consider the Council's decision to withhold access to the relevant information under section 37 .

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including (ii) information relating to the financial affairs of the individual and (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.

The Council has stated in submissions to this Office that records relating to the payment of a planning contribution are maintained separately from the actual planning file. The Council stated that it did not consider it appropriate to maintain records regarding financial transactions in a public file. It also stated that, where applicable, it considered details of payment by instalment arrangements, reductions or refunds to be matters between the individuals and the Council. The applicant indicated to Ms Murdiff that he accepted that such details were matters between the individuals and the Council. However, he argued that these details were not held on the public planning file and that providing him with the relevant PRNs would not give him access to details of payment, reductions or refunds.

My understanding is that a public planning file merely records that a planning contribution is payable. The Council stated that details of refunds are not put on the public file. However, the table created by the Council and released in part to the applicant indicates that a refund was paid. Having examined the withheld information, which comprises a unique planning reference number, in the context of its inclusion on a document confirming that a planning contribution was payable and that all or part of this was refunded by the Council, and in what circumstances, I am of the view that the information is personal information. Accordingly, I find that section 37(1) applies.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public (insofar as details of refunds paid are not available on the public file); (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. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In considering the public interest test at section 37(5)(a), I have had regard to The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner[2011] IESC 26. In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
The applicant is of the view that the Council should grant access to the PRNs sought as they relate to the public planning process. He argued that the information being sought is available on each individual public planning file. The applicant indicated that he "would be happy to only receive an un-redacted copy of the spreadsheet record created by the Council". He stated that this would allow him to obtain a clearer description of the type and extent of developments for which refunds were given. I note that the applicant has indicated that he seeking the information at issue in order to support his case for a refund of a planning contribution he has paid to the Council. This would seem to me to be a private rather than a public interest.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. In my view, this has been met to a large extent by the information already in the public domain relating to the planning process, as well as by the material already released to the applicant. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in 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.

Furthermore, in this case the moneys paid to the individuals concerned are refunds of payments they had previously made to the Council. In my view, this differs from cases involving the expenditure of public funds. I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request. I hereby affirm the Council's decision to refuse to grant access to details of PRNs in the record concerned.

As I have found the Council's decision to refuse to grant access to the information at issue under section 37(1), it is not necessary for me to deal with the application of section 36, as also relied on by the Council.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's refusal to grant access to details of the relevant PRNs on the basis of section 37(1) 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.

Elizabeth Dolan
Senior Investigator