Whether the Council was justified in refusing access, under section 35(1) of the FOI Act, to a record of correspondence between An Garda Siochána and the Council held on the applicant-�s housing file

28 April 2021

Background

In a request dated 19 August 2020, the applicant sought access to all records relating to her housing file.  On 17 September 2020, the Council decided to grant the request and released a copy of the applicant-�s housing file.

On 21 September 2020, the applicant submitted what she described as a second request for her file on the ground that she had not received the full file on foot of her first request. She provided the Council with details of records that were missing from her file, including all records from 2020.

In a second decision dated 28 September 2020, the Council indicated that it had decided to part-grant the request. It enclosed an updated copy of the applicant-�s housing file with the 2020 correspondence included, with certain information redacted under section 37 of the Act (personal information of third parties). It did not provide a schedule of records with its decision.

Following an exchange of correspondence between the applicant-�s legal representative and the Council, the Council issued what it described as an addendum to its decision of 28 September 2020, in which it refused access to -�Garda correspondence-� under sections 35(1)(a) and 35(1)(b). For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with her legal representatives.

On 4 November 2020, the applicant sought an internal review of the Council-�s decision.  In its internal review decision which issued on 26 November 2020, the Council provided a schedule of all records considered for release. It affirmed the decision to refuse access, under section 35(1), to record number 31, described as -�Correspondence from An Garda Síochána-�, and to refuse access to parts of a number of other records under section 37(1).

In correspondence received on 8 January 2021, the applicant sought a review by this Office of the Council-�s decision. Subsequently, the applicant confirmed that the review could be confined to the Council-�s refusal of its correspondence with An Garda Síochána (AGS).    

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 submissions made by the relevant parties who made submissions and to the submissions made by the FOI body in support of its decision.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The review is concerned solely with whether the Council was justified, under section 35(1) of the Act, in refusing access to correspondence between the Council and AGS relating to the applicant.

Preliminary Matters

The manner in which the Council processed the applicant-�s request in this case fell well short of the standard that would be expected of a public body that has been subject to the provisions of the FOI Act for many years now. First, it is apparent that the Council failed to conduct adequate searches when initially processing the request in an effort to identify all relevant records. Secondly, its failure to provide a schedule of records made it very difficult for the applicant to determine precisely what records the Council holds and what its position was in respect of those records. Thirdly, the Council made no reference to the fact that it was withholding correspondence with AGS or the grounds on which it had decided to do so, until such correspondence was expressly mentioned by the applicant-�s legal representatives. Fourthly, the decision letters fell short of the requirements of the Act as set out in sections 13(2)(d) and 21(5)(c).  

The Council will be well aware of the various resources available to it on the website of the Central Policy Unit of the Department of Public Expenditure and Reform (www.foi.gov.ie) that are of significant assistance in terms of ensuring that FOI requests are properly processed, including an FOI processing manual and the Code of Practice published by The Minister to which public bodies must have regard. I expect the Council to take measures to ensure that its decision makers are familiar with those resources and that it has sufficient resources allocated to the FOI function to ensure that future requests are processed appropriately.

Analysis and Findings

Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence,
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(b) provides for the refusal of a request where the disclosure of the information concerned would constitute breach of a duty of confidence provided for by an agreement or enactment or otherwise by law.

The record at issue comprises a letter from AGS to the Council relating to the applicant concerning anti-social behaviour. During the course of the review, the Investigating Officer notified AGS of the request and informed it of her view that section 35(1) did not apply. While AGS noted that it had not had sight of the record, it agreed that, having regard to the description of the record, it would be difficult to see how the exemption applied. It said that as the information relates to the applicant, it could hardly be considered confidential. It said it is unlikely that the release of the record in this instance will prejudice the giving of such information in the future.

In a subsequent telephone conversation with this Office, the Council accepted that it was not appropriate to rely on section 35 to refuse access to the record. However, it argued that the record contains third party personal information that is exempt from release under section 37.

It is not appropriate that this Office should be a first instance decision maker to determine what information, if any, might qualify for exemption under section 37. In the circumstances, it seems to me that the most appropriate course of action to take is to annul the decision of the Council to refuse access, under section 35(1), to the record sought and to direct it to undertake a fresh decision making process on the record. If the applicant is dissatisfied with the fresh decision, she will be entitled to apply for an internal review of that decision and ultimately, may apply for a further review by this Office.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council to refuse access to the record sought under section 35(1).  I direct the Department to undertake a fresh decision making process in respect of the record.

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