Whether the Council was justified in redacting certain information from records relating to the proposed extension of the Herbert Road car park and the acquisition of property adjacent to the car park under 37(1) of the FOI Act and in refusing to release any further records on the ground that no further relevant records exist or can be found
5 July 2018
Background
On 16 October 2017, the applicant sought access to all records created in the last four years relating to (a) the possible extension or expansion of existing car parking facilities (including access and exit) of the Herbert Road car park and (b) all documents referring to the actual or possible acquisition, rental, demolition or other disposal of all or part of the property known as St. Paul's and another named property adjacent to that car park.
On 7 November, the Council issued its decision wherein it identified 24 records as falling within the applicant's request. It granted access to six records, part-granted access to two records and refused access to 16 records. In refusing access to records the Council relied on sections 30 (which serves to protect the functions and negotiations of FOI bodies), 36 (which protects commercially sensitive information) and 37 (which protects personal information). The applicant sought an internal review of that decision and on 28 November 2017 the Council released two additional records it had located and affirmed the original decision in respect of the remaining records. On 20 December 2017 the applicant sought a review by this Office of the Council's decision. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it prepared when processing the request.
In the course of correspondence with this Office the Council indicated that as the purchase of the property known as St. Paul's had concluded in January 2018, the Council was no longer relying on the exemptions set out in sections 30 and 36 to refuse access to the relevant records and it granted access in full to a further nine records (records 9, 10, 16 to 20, 22, and 23). However it maintained its reliance on section 37 to redact information from six records which it had previously refused to the applicant (records 11, 12, 13, 14, 15 and 21) on the basis that these records contained information relating to a property which had not been purchased by the Council. In addition the Council relied on section 37 to maintain its refusal to grant access to record 24 in its entirety which also related to this second property.
Following further queries from this Office the Council conducted searches of the email accounts of the former and current Chief Executive Officer as well as further searches of the email accounts of Bray Municipal District Manager and the District Administrator. Following these searches a further 31 records were identified. The Council indicated its willingness to release these records to the applicant with some elements redacted in 11 of these records on the basis of section 37 (records 15, 16, 22, 23, 24, and 26 to 31 in the supplementary schedule prepared by the Council). In addition the Council also indicated that no further records existed that fell within the scope of the applicant's request.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Council's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the record at issue.
Scope of Review
This review is concerned solely with whether Wicklow County Council was justified in refusing to grant access to record 24, in redacting certain information from records 1, 3, 11 to 15, and 21 and from records 15, 16, 22, 23, 24, and 26 to 31 of the second tranche of records located during the course of the review, and in refusing access to any additional relevant records on the ground that no further relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a)
As outlined above, the Council's position is that following the most recent searches of the relevant email accounts, no further relevant records coming within the scope of the applicant's request exist. Section 15(1)(a) of the FOI Act provides that a request may be refused if the records sought do not exist, or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases 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.
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 its submissions to this Office, the Council provided details of the various searches which have been undertaken to identify records falling within the scope of the applicant's request and of its relevant records management practices. Following receipt of the applicant's request the Council indicated that searches were carried out on the emails of the five staff with involvement on this project within Bray Municipal District. In addition the paper files relating to Herbert Road, Town Centre parking and possible Herbert Road car park extension were also searched in the District Administrator's and District Engineer's offices as well as the general administration offices. An electronic index search was also carried out by name and address.
Following an exchange of correspondence with this Office, the Council undertook searches of the email accounts of the former and current Chief Executive Officer as well as further searches of the email accounts of Bray Municipal District Manager and the District Administrator which resulted in a further 31 records being identified. Following the identification of these further records the position of the Council is that it has taken all reasonable steps to look for records of relevance to the applicant's request.
In addition to these further searches, following requests by this Office, the Council provided answers to a number of specific queries which had been put by the applicant. In response to the applicant's submission that an architect's opinion referred to in record 10 should be amongst the records identified, the Council indicated that this architect's opinion was the opinion of the vendor's architect and therefore the Council does not hold a copy of this record. The applicant also questioned why there was an order for acquisition of the property (record 9) but no request for acquisition. In response the Council indicated that record 9 is both the request for and order for acquisition. Following the applicant's request for the list of the contents of the purchased property which was referred to in one of the records, the Council indicated that, contrary to the wording of this record, the list had not in fact been appended to the original correspondence. However the Council sourced a copy of the list of contents and provided it to the applicant.
When queried as to why the records identified only begin in December 2016 despite the applicant's request for records dating back four years, the Council indicated that due to the small size of Bray Municipal District most business is conducted by stand-up discussion. The Office also queried whether any records falling within the scope of the applicant's request existed on files relating to a separate but geographically proximate building project. In response the Council indicated that no mention is made of the Herbert Road car park in the files relating to this building project.
The applicant had also queried whether any text messages falling within the scope of his request existed. In response the Council indicated that as official business is not conducted via text message no records falling within the scope of his request exist in text message format. The applicant had also queried why there was no formal order initiating the purchasing of the property existed amongst the records identified. In response the Council indicated it is not established practice to have a formal order to initiate such purchases.
In the circumstances outlined above, and in view of the information provided by the Council relating to the searches 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(1)
The Council has refused access to 1 record in full and 19 records in part on the basis of section 37(1) of the FOI Act which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. Personal information is defined in section 2 of Act 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 that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
The information redacted from the relevant records relates to a second property adjacent to the property known as St. Paul's. The Council stated that at one point it was considering purchasing this property but ultimately the purchase of this second property did not proceed and it remains in private ownership. The Council argued that as the redacted information relates to matters such as the name of the property owner, the estimated value of the property, possible tax implications of the sale of the property and detailed descriptions of the property, this information falls within the meaning of personal information set out in section 2.
The applicant is of the view that redacted information does not contain personal information. He contends that as the Council was considering purchasing this property matters such as the valuation of the property cannot be said to be a personal matter and there is a public interest in providing further information about the attempted purchase of the property by the Council. In addition the applicant has indicated that given the specific identity of the owner of this property then details in relation to his ownership of the property cannot be deemed to be personal information.
Having examined the records at issue I accept that the redacted elements comprise personal information relating to an individual other than the applicant within the meaning of the FOI Act. I therefore find that section 37(1) applies to the information redacted by the Council both in the original records and the second tranche of records.
Section 37(1) is subject to other provisions of the section. In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.
I must therefore consider whether the public interest in releasing the redacted information, on balance, outweighs the right to privacy of the individual concerned. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy 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.
Given that the property in question is in private ownership and was not purchased by the Council, I am satisfied that the public interest in releasing the information at issue does not, on balance, outweigh the privacy rights of the individual concerned. I therefore find that section 37(5)(a) does not apply. In conclusion I find that the Council was justified in redacting certain information from the relevant records under section 37(1).
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of Wicklow County Council in this case. I find that it was justified in redacting certain information from the records released under section 37(1) and that it was justified, under section 15(1)(a), in refusing access to additional relevant records on the ground that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken.
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
