Whether the Council was justified in refusing to release records under section 37(1) and section 15(1)(a) relating to landlord and tenancy arrangements

24/01/2018

Background

On 13 October 2016, the applicant, who is a landlord, submitted an FOI request to the Council for access to records concerning her from 1 June 2012 to the date of the request. The Council issued a decision on 2 November 2016 and granted access to certain records in a 'Landlord File' but refused access to other records held on a 'Tenant File' on the basis of section 37 (Personal information) of the FOI Act. The applicant made a request for an internal review on 3 November 2016 but did not receive a decision from the Council within the statutory timeframe. Following communications with this Office, the Council provided the applicant with its effective position on 21 September 2017. The Council granted access to additional records and affirmed its decision to refuse access to others on the basis of section 37(1) of the Act. On 29 September 2017, this Office received an application for a review from the applicant.

During the course of this review, the Council released additional records to the applicant. In reply to a query from this Office, it stated it had refused access to other records on the basis of section 15(1)(a), i.e. that these records were not held.  The applicant was advised by this Office of the decision of the Council in relation to section 15(1)(a). A submission was not received from the applicant on the matter.

In correspondence to this Office the Council acknowledged that the internal review decision was late. The Council said that it had assigned additional resources to the management of matters related to Freedom of Information. 

In conducting this review I have had regard to the submissions of the Council, and to correspondence between the applicant, the Council and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.  

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest. 

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Scope of Review

This review is solely concerned with whether the decision of the Council to refuse the applicant's request under sections 15(1)(a) and 37(1) of the FOI Act was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.  

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  However, it is not normally the function of this Office to search for records that a requester believes are in existence.

In her letter of application, the applicant referred to a meeting she attended on 13 October 2016. She said that during the meeting "several pages of notes" were written. The applicant is seeking access to those notes. 

In its submission, the Council acknowledged that notes were taken but said that these were transcribed onto a letter which subsequently issued to the applicant on the same date. The Council said that the record of that meeting is referred to, and effectively summarised in, records 106 and 107 which were released to the applicant. The Council said that while it cannot state definitively that the notes were destroyed, it cannot locate any other records relating to the meeting. The Council said that it conducted searches in both files relating to the applicant's request and consulted staff members who confirmed that they had not retained any other record relating to the meeting.

The position of the Council is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Council to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, and its responses to this Office's queries, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 37- Personal Information

Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 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 FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".

 Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

As mentioned above, the records contain information relating to a 'Tenant File'.  Having reviewed the records, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act apply to the records.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) 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)
Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. There is no obvious case, nor has such a case been made, that the third parties would benefit from the release of the records. Thus, I find that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - The Public Interest
The effect of section 37(5)(a) is that a record, which has been found to be exempt under section 37(1), may be released if it can be demonstrated that, on balance, "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in 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). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. 

The applicant did not specifically refer to the public interest in her application to this Office, although it is clear that she is dissatisfied with the outcome of her request. However, I cannot take into account any private interests that the applicant may have in the release of the records. I accept that the FOI Act itself recognises a public interest in promoting the openness and accountability of FOI bodies. 

It would not be appropriate for me to direct the release of any third party personal information on the basis of the applicant's reasons as to why she required access to the records. As the Commissioner said in his composite decision in cases 090261/090262/090263, which was upheld by the High Court in FP v The Information Commissioner [2016] IEHC 771, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances." 

On the other hand, 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). Accordingly, 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 consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI. 

I consider that the public interest has been met to some extent by the Council having released some records. However, it seems to me that it would not be possible to further serve the public interest in ensuring openness and accountability of the Council without breaching the right to privacy of third parties. Having considered the matter carefully, I find that the public interest served by the release of the records would not outweigh the public interest in upholding the right to privacy of the individuals other than the applicant whose personal information is in the withheld records.

In summary, therefore, I find that the withheld records are exempt under section 37(1) of the FOI Act.

 
Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse to release records to the applicant under section 15(1)(a) of the FOI Act on the ground that no relevant records exist. I affirm the decision of the Council to refuse to release the remaining records in full to the applicant, under 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