Whether the Council was justified in refusing access to records relating to a particular site under sections 29, 30(1)(a), 35(1)(a) and 37(1) of the FOI Act
27 May 2020
Background
On 8 November 2019, the applicant made an FOI request to the Council for records relating to an identified site, for the period since his previous request on 17 July 2019. On 8 January 2020, the Council issued a decision. It granted access to some records and refused access to the remaining records on the grounds that they were exempt under sections 29(1)(a), 30(1)(a), 35(1)(a) and 37(1) of the FOI Act. On 8 January 2020, the applicant applied for an internal review. The Council issued an internal review decision on 30 January 2020, in which it affirmed its decision. On 5 February 2020, the applicant applied to this Office for a review of the Council's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Council for the purposes of this review.
Scope of this Review
The question for me is whether the withheld records identified by the Council are exempt under sections 29, 30(1)(a), 35(1)(a) and 37(1) of the FOI Act.
Preliminary Matters
Before considering the exemptions claimed, I wish to note the following points. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. Secondly, 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.
Analysis and Findings
Section 37 - Personal Information
The Council claims section 37(1) of the FOI Act over certain information in Records 1, 16, 19, 20, 21, 22, 23, 24, 25 and 26 which it withheld or redacted from the copies released. Having reviewed Records 4 and 6, I consider it appropriate to examine certain information in these records under section 37(1) also. For completeness, I note that Record 7 is a duplicate of Record 1 so I will not make any separate findings on it.
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These include “(iii) information relating to the employment or employment history of the individual” and “(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".
It is very important to note that information which comes within any of the fourteen categories specified at paragraphs (i) to (xiv) is also personal information - there is no requirement for information falling within (i) to (xiv) to also meet the requirements of paragraphs (a) or (b).
Paragraphs I and II of section 2 of the FOI Act exclude certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office, as well as the names of service providers to FOI bodies and information relating to their service. The Commissioner takes the view that this exclusion is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant while carrying out his or her official functions, but does not deprive public servants of the right to privacy generally.
As the applicant may have deduced from the redacted copies released to him, the information concerned comprises the names, mobile telephone numbers, email addresses and personal leave details of various individuals other than the applicant, including persons who made enquiries of the Council concerning the site. For the avoidance of doubt, the consultants to the site owner are not service providers to the Council and therefore do not fall within the exclusion at Paragraph II of section 2 of the FOI Act. Furthermore, I do not consider that the personal leave details of the staff members of an FOI body fall within the exclusion at Paragraph I of section 2. With the exception of Record 24, which I deal with below, I am satisfied that the information concerned is personal information within the meaning of the FOI Act.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. I am then required to consider section 37(5) as it applies to the information.
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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 do not consider that releasing this particular information would serve the public interest in transparency around the Council’s carrying out of its functions. On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the Council was justified in refusing access to this information under section 37(1) of the FOI Act.
However, the relevant information in Record 24 comprises the name of a staff member of an FOI body and an observation on the site made by that individual. I do not accept that this qualifies as personal information under section 2 of the FOI Act. I find that section 37(1) does not apply to it and the Council was not justified in refusing access to it under section 37(1) of the FOI Act.
Given this finding, I am not required to consider the Council’s claim for exemption under section 35 over certain information in Records 4 and 6.
Section 30(1)(a) – Functions and negotiations of FOI bodies
The Council claims section 30(1)(a) over Records 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 22, 24, 25 and 27. Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is subject to a public interest test under section 30(2).
Submissions
The Council says that matters at the site concerned are subject to ongoing examination in terms of agreed works and as works advance and the site clears, it reveals new issues for investigation and examination. It says that this requires ongoing investigations and negotiations with the site owner and the consultants engaged by the site owner. It submits that this process would not be well served by putting these details in the public domain. It says that details of the methods and procedures adopted by the Council are best kept confidential in the interests of reaching a good outcome. It says that it is in the public interest to resolve matters as quickly as possible. It submits that the public interest is served by the provision of the information on the schedule of records, which indicates the interaction with the site owner and the nature of that interaction. The Council also says that its overall aim is to prevent public access to the site and submits that disclosing the records would not be helpful in this regard.
Analysis and Findings
The records comprise correspondence between the Council and a planning consultancy and conservation architect engaged by the owner of the site. They relate to proposed works on the site, protection plans and a schedule of works. They include notes of meetings between the Council and site owner and consultants about progress on the works. There is some duplication in the content, owing to the nature of the email “strings”.
I accept that these records relate to an investigation or inquiry etc. by the Council for the purposes of section 30(1)(a) of the FOI Act, as they relate to the Council’s investigation into the plans and ongoing works for the site concerned. Furthermore, I am satisfied that disclosing them while the process is ongoing could reasonably be expected to prejudice the effectiveness of the Council’s ongoing investigation and engagement with the site owner and their consultants, which require a confidential flow of information about details of the site and works. I am also cognisant of the particular sensitivities around the site concerned. I therefore find that section 30(1)(a) applies to the records.
I must then go on to consider the public interest test under section 30(2). On the one hand, I consider that there is a public interest in enhancing the transparency and accountability of the Council in its exercise of statutory functions to deal with derelict sites, dangerous structures and protected structures. Section 11(3) of the FOI Act requires public bodies performing functions under the FOI Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision-making. On the other hand, there is a countervailing public interest in ensuring that the effectiveness of the Council’s functions is not prejudiced.
In deciding whether, on balance, the public interest would be better served by granting than by refusing to grant the request, I consider it appropriate to distinguish between the content of different records and what that would disclose if released. I believe that disclosing the following information would serve the public interest in achieving transparency around the Council’s exercise of its functions: Records 2, 3, 5, 8, 9 (page 2 only), 13, 14, 15, 17, 18, 24 and 27. I find that the Council was not justified in refusing access to these records under section 30(1)(a) of the FOI Act. However, I consider that Records 4, 6, 9 (page 1 only), 10, 11, 12, 22 and 25 relate more to the site itself, which is privately owned, than to the Council’s involvement in fulfilling its statutory functions. I therefore find that the Council was justified in refusing access to those records under section 30(1)(a) of the FOI Act.
Section 29 – Deliberations of public bodies
Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest
The Council claims section 29(1) over Records 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 22, 25 and 27. Given my finding under section 30, I am only required to consider section 29(1) in relation to Records 2, 3, 5, 8, 9 (page 2 only), 13, 14, 15, 17, 18 and 27.
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records.
The exemption at section 29(1) does not apply to a record insofar as it contains factual information (section 29(2)(b)). Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.
Submissions
The Council says that the deliberative process relates to a decision that it may have to take in terms of enforcement action by way of statutory notice. It submits that it is best to conduct negotiations with the site owner confidentially and it is not in the public interest to release the records, as that could compromise negotiations to achieve a good outcome.
Analysis and Findings
A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Having reviewed the content of the remaining records, I am not satisfied that section 29(1)(a) applies to them. I consider that they contain factual information related to the Council’s investigation and examination of the works on the site. Having regard to the overlap between the Council’s submissions on sections 29 and 30, I believe that its argument is more properly viewed as a claim under section 30, which I have addressed above. I find that section 29(1)(a) does not apply to the remaining records and the Council was not justified in refusing access to them under section 29 of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I vary the Council's decision as follows. I affirm its decision to withhold certain records and parts of records under sections 30(1)(a) and 37(1) of the FOI Act, as outlined above. I annul its decision to withhold the remaining information and direct its release. The information which falls for release is as follows: Records 2, 3, 5, 8, 9 (page 2 only) 13, 14, 15, 17, 18, 24 and 27. For the avoidance of doubt, any names and contact details of individuals other than staff members of FOI bodies should be redacted, in accordance with my finding 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator