Whether the Department was justified in refusing access to a report entitled “A review into certain planning matters in respect of Donegal County Council”

27 February 2020

Background

The applicant’s FOI request of 17 September 2019 sought access to a report on planning irregularities that was submitted to the Department in June 2017. The Department’s decision of 25 September 2019 withheld a report entitled “A Review into certain planning matters in respect of Donegal County Council” under various provisions of the FOI Act including section 37(1) (personal information). On 30 September 2019, the applicant sought an internal review of the Department’s decision. The Department’s internal review decision of 24 October 2019 affirmed its refusal to release the report. On 26 November 2019, the applicant applied to this Office for a review of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also had regard to the contents of the report at issue and the provisions of the FOI Act.

Scope of the review

The scope of this review is confined to whether the Department’s decision to withhold the requested report was justified under the provisions of the FOI Act.

Findings

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions.

The applicant knows that the Information Commissioner, in his capacity as Commissioner for Environmental Information, has considered the requested report under the Access to Information on the Environment Regulations (https://www.ocei.ie/patrick-costello-the-depa/index.xml, (the Costello decision)). In summary, the Commissioner found that the report contained personal information and that the interest served by refusing to release the report outweighed the public interest in disclosing it. As is his right, the applicant wants a decision on his application for review. In the circumstances, the most appropriate exemption for me to consider in this case is section 37(1) of the Act.

Section 37 - personal information

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information.

In the Costello decision under the heading “Whether the cited exceptions under articles 8(a)(i), 8(a)(ii), 8(a)(iv) and 9(1)(b) justify refusal”, the Commissioner explains why he found the report to contain personal information. I adopt his analysis for the purposes of my decision and I find that section 37(1) of the FOI Act applies to the report.

The applicant asks if it would be possible to get access to the report with personal information redacted. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 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.

The Commissioner also considered this question in the Costello decision, under the heading of “Article 10(5) – Separation of Environmental Information”. He explained that personal information about individuals was intertwined with much of the other information in the report. He also explained why it would be misleading to release those conclusions and recommendations that do not also disclose personal information without the context of the report’s main body. I adopt his analysis for the purposes of this review. Having considered the matter, I do not consider that this is a case in which it would be appropriate to consider directing that partial access be granted to the report. I find that section 37(1) of the FOI Act applies to it in full.

Section 37(5) - The Public Interest

Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). 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 public interest that the right to privacy of the individuals 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] IESC 26 ("the Rotunda judgment"). It is noted that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider it to be relevant to consideration of public interest tests generally.

The applicant says that justice delayed is justice denied. He says that the report concerns a serious matter of significant public interest. He says that the State’s official review process dates back to 2010, that a year and a half have elapsed since the report was submitted to the Department and that there is no indication of it being published. He says that it is important for the public to know about any of the allegations that are true or, alternatively, for the allegations not to continue hanging over Donegal County Council.

There is a public interest, which is recognised by the FOI Act, in promoting openness and accountability regarding how FOI bodies perform their functions. In this case, there is a public interest in disclosing information concerning the Department’s performance of its functions in relation to planning matters within Donegal County Council. I accept that this public interest is entitled to significant weight and that it would be served by releasing the report. However, I should also say that I have no role in examining how the Department or Minister perform their functions generally. It would not be appropriate for me to direct release of the report simply because the matter has been ongoing for a considerable period of time.

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). Having regard to the contents of the report, I am satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of identifiable individuals.

Having considered the matter carefully, I find that the public interest in favour of granting access to the report does not outweigh the public interest that the right to privacy of individuals should be upheld. Having regard to my findings on section 37 in this case, there is no need for me to consider the Department’s reliance on any other provisions of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the report 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