Whether the Council was justified in refusing access to records relating to planning matters at a specified location under sections 31(1)(a), 31(1)(b), 32(1)(a)(i) and 32(1)(a)(ii) of the FOI Act

22 December 2020

Background

In a request dated 29 November 2019, the applicant sought access to a number of specified planning files, and all records held relating to the planning applications, including planners’ recommendations and notes and legal opinion in relation to a “right of way” through the development site.

In a decision dated 20 December 2019, the Council refused access to the planning files under section 15(1)(d) of the Act on the ground that they are publicly available. It refused access to the records held on a related planning enforcement file, including any legal opinion, under section 32(1)(a)(i) and (ii). It provided information on how to access the publicly available planning files. 

The applicant sought an internal review of the Council’s decision. On 24 March 2020, the Council affirmed its refusal of the request. The internal reviewer also cited sections 31(1)(a) and (b) in support of the refusal of records held on the planning enforcement file. No schedule or details of relevant records were provided to the applicant. On 11 June 2020, the applicant sought a review by this Office of the Council’s decision to refuse access to the planning enforcement file.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant’s comments in his application for review, to the submissions made by the FOI body in support of its decision and to correspondence between this Office and both the applicant and the FOI body.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, the Council identified 29 records as relevant to the review and provided a schedule to the applicant. The applicant confirmed that he did not require copies of records of complaints to the Council on the matter or responses from the Council to such complaints, or an invoice for legal advice. One record did not relate to the “right of way” issue and one record post-dated the request.  Therefore, 12 records were removed from the scope of the review. The Council also reviewed its position and released six records.    

Accordingly, this review is concerned solely with the question of whether the Council was justified, under sections 31(1)(a) and (b) and 32(1)(a)(i) and (ii) of the Act, in refusing access to the remaining eleven records on the planning enforcement file.  These are records 4, 5, 10, 15, 16, 18, 19, 20, 21, 22 and 23 as numbered in the schedule of records prepared by the Council during the review.

Analysis and Findings

Section 31(1)(a) – Legal Professional Privilege

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Council argued that section 31(1)(a) applies to records 16 and 18 to 23. In my view, it is also of relevance to records 10 and 15.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of “once privileged always privileged” applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31 (1)(a) does not require consideration of the public interest.

The records at issue comprise correspondence between the Council and its legal advisor for the purpose of obtaining and giving legal advice on the right of way issue and internal correspondence relating to the request for, and receipt of, that legal advice. I am satisfied that they are confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and giving legal advice or form part of a continuum of correspondence resulting from the original request for advice. I find that section 31(1)(a) applies to records 10, 15, 16 and 18 to 23.  

Section 32(1)(a)(i) and (ii)

The Council refused access to records 4 and 5 under sections 32(1)(a)(i) and (ii). Record 4 comprises correspondence received by the Council on behalf of a landowner to whom a warning letter was issued, and conveys legal advice received by the landowner and some other information about the then state of the development site.  It also contains copies of correspondence to the landowner’s solicitor from another solicitor. Record 5 comprises an internal memo recommending that legal advice be sought in relation to the right of way issue, and refers to the contents of record 4.

Section 32(1)(a) provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.

(ii) the enforcement of, compliance with or administration of any law

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

According to the Council, the records sought related to an ongoing investigation under the Planning and Development Act, 2000, as amended and release of the records would serve to undermine the integrity of the investigation as a result of a failure to have due regard to procedural fairness. The complaint to which the records relate has now been closed. The Council has not shown how the release of the information in these records could give rise to the harm as set out in the exemption, nor is it evident from the content of the record. For example, the records do not contain any material on how the council approaches the prevention, detection or investigation of offences, nor any information on the lawful methods, systems, plans or procedures employed for same.  While the matter arises in the context of the Planning and Development Act, 2000, I cannot see how the release of information at issue in these records could prejudice or impair the council in its functions in this regard. I find that sections 32(1)(a)(i) and (ii) do not apply to records 4 and 5.

Section 37

Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 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 that is personal information, without prejudice to the foregoing definition, including information relating to the property of an individual. Having examined records 4 and 5, described above, I am satisfied that they contain personal information relating to the property of an individual and that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise 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 their 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. I find that section 37(2) does not apply to the withheld information.

Section 37(5) of the Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would benefit the person to whom the information relates.

On the matter of whether section 37(5)(b) applies, no argument has been made, nor is it evident from the records, that the grant of the request would benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

In the circumstances where the Council has completed its investigation and advised the complainants of the outcome, and given that the release of records under the FOI is regarded, in effect, as release to the world at large, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the individuals concerned. I find that section 37(5)(a) does not apply in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council.  I find that section 31(1)(a) applies to records 10, 15, 16, 18, 19, 20, 21, 22 and 23, that section 37(1) applies to records 4 and 5, and that the Council was justified in refusing access to those records.

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