Whether the Council was justified in refusing access to records relating to its acquisition of land from two named parties under a particular Compulsory Purchase Order

18 May 2021

Background

On account of the manner in which it is framed, it is useful to set out the applicant-�s FOI request of 28 September 2020 in detail rather than in summary form. It referred to a particular Compulsory Purchase Order (CPO) and two named parties (Mr A and Ms B).

Paragraph one said that the Council acquired land from both of the named parties under the CPO and described information regarding Mr A-�s plots that the applicant stated the Council had published. The applicant said that it had been unable to confirm if -�the alleged owners were de facto the registered owners as at the date of confirmation of the CPO-�. It asked for confirmation of whether the Council treated with -�this person-� and whether -�they-� transferred the title of whatever was purchased under the CPO to the Council. Paragraph two set out details regarding Ms B-�s plots that the applicant said the Council published. Paragraph three asked the Council to explain why it did not follow what the applicant described as the normal way of numbering plots.

Paragraph four referred to a particular plot number and asked the Council to -�set out-� the farm buildings, their extents, their construction type and any roofing materials. It suggested that any buildings that existed might have been built after the introduction of planning legislation and, if this is the case, asked for details regarding any such planning application made. Paragraph five concerned the land purchased by reference to the same plot number referred to in paragraph four. It asked for details of what was found on it when inspected by Council officials, such as farm buildings, cattle pens, etc. It asked for drawings and specifications and the estimated cost of works carried out relating to the plot. It asked for the reason for the work carried out by the Council on behalf of the landowner -�if indeed the named person was the owner-�. It asked for a map or plan of the precise location of the work carried out by the Council.

Paragraph six asked for the particulars, drawings and maps as prepared by the Council in relation to the CPO and details -�as outlined above-� in relation to the works carried out on the lands acquired, any drawing or plan prepared for those works, the name of the person responsible for the drawings or plans and the total costs incurred in regard to all works carried out by the Council outside the area involved in the CPO.

The Council issued its decision on 27 October 2020, in which it answered the query in paragraph three and provided access to two drawings that it says were published under the relevant CPO. Otherwise, however, the Council refused the request under section 37(1) of the FOI Act (personal information). In summary, it stated that it considers the request to seek personal information as well as commercially sensitive information regarding accommodation works for the individuals mentioned. It noted that the requester had not provided any confirmation that it was acting for Mr A and Ms B or that they consented to the release of their personal information.

The applicant sought an internal review on 4 November 2020. The Council-�s internal review decision of 15 December 2020 affirmed its refusal of the request under section 37(1) of the FOI Act on the basis that the records form part of discussions and negotiations with third parties as part of a CPO process and the records therefore constitute the personal information of those parties. It reiterated that the requester had not provided any consent from Mr A and Ms B regarding the release of their personal information.

On 13 January 2021, the applicant sought a review by this Office of the Council-�s decision. It says that it has been involved in CPOs for many years, acting on behalf of landowners affected by such procedures. It confirms that it does not act for the parties named in the request.

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 correspondence between this Office, the Council and the applicant. I have also had regard to the contents of the records that the Council identified as covered by the request. I have also had regard to the provisions of the FOI Act.

Scope of the Review

Before I outline the scope of my review, it is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Although parts of the applicant-�s request seek access to records, much of it seeks information. Requests seeking information or asking questions are not valid requests under the Act, except to the extent that they can reasonably be inferred to be requests for records containing the information sought or the answers to the questions asked.

Accordingly, the scope of this review is confined to whether or not the Council was justified in refusing to grant the applicant-�s request, on the basis that the records it identified as covered by that request are exempt under the FOI Act. It does not extend to examining any other matter, including the Council-�s performance of its functions insofar as any aspect of the CPO is concerned or any issues to do with the ownership of the lands specified in the request.

Preliminary Matters

The following general matters should be noted. Firstly, the release of records under FOI is generally understood to have the same effect as publishing them to the world at large. Furthermore, section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making the FOI request.

Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

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.

Finally, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am required not to disclose any details of the records under review.

Analysis and Findings

Generally speaking, CPOs are a means of allowing public infrastructure projects to proceed on the basis that they enable certain statutory bodies to take land or property without the consent of the owner. Landowners are eligible for compensation to restore them, as far as possible, to the same position they were in before the acquisition.

Personal Information - section 37

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 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). Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

The Council says that the request seeks records relating to accommodation works and related costs as negotiated and agreed between it and third parties arising from its compulsory acquisition of particular plots. It says that every land acquisition is settled on its own merits and that details of agreements made regarding accommodation works etc. are private to the landowner.

The applicant does not accept that the records relate to the personal information of third parties. It says that the records relate to works undertaken by the Council further to authorisation received from An Bord Pleanala to carry out certain works. It says that the Council has published certain details about the proposed works and that the request is intended to make all details of the proposed works open -�to the persons concerned and the public in general.-�

Having examined the records, I am satisfied that they contain information beyond what has already been published about the CPO about the parties named in the request and that this information is of a type that meets the definitions of personal information. I am also satisfied that the records are captured by the above examples of what comprises personal information about identifiable individuals. I find that the records are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply and I am satisfied that none of the circumstances arise in this case. That is to say: (a) the withheld information does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant here. This 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 whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a public interest (-�a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law-�) should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

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). Unlike other public interest tests provided for in the FOI Act, there is also 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

The applicant says that the request seeks information about the land being acquired and its ownership to enable the general public and landowners in general to decide what course of action they may wish to take. It appears to question whether the Council should have engaged with Mr A and/or Ms B. It believes that the Council went beyond its obligations in this case. It says that the Council is responsible to the public and must provide records of its functions and works undertaken and retain such records for public examination and for the public to query matters. It says that granting the request will not only be of importance to it but will allow it to ensure that the accommodation works undertaken by the Council do not exceed its legal obligations such that considerable amounts of public money are spent on works for which the Council is not responsible. It says that it has no ability to question the Council-�s accounts and that any auditor examining them may not necessarily know what the relevant expenditure was for or whether it was for works that are the Council-�s responsibility.

The Council says that it would be more in the public interest to know what was spent on land/accommodation works under the CPO for the project as a whole rather than details pertinent to a specific plot or particular individuals. It says that members of the public are entitled to privacy regarding their dealings with FOI bodies.

As stated earlier, I cannot have regard to any private interests that the applicant may have in obtaining the requested records. In addition, I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant takes issue with the Council-�s treatment of any aspect of the CPO process.

I accept that disclosure of the records would enable a partial insight into the Council-�s handling of part of the CPO and the related expenditure of State monies. However, this does not mean that there should be no protection of privacy rights. I am satisfied that placing the withheld records in the public domain would significantly breach the rights to privacy of identifiable individuals. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific withheld information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. I should also add that it is not apparent to me that the records contain the name of the person responsible for the drawings or plans (paragraph six) but in any event, directing the release of such information from the records at issue would not, in my view, be in keeping with the Commissioner-�s approach to section 18 of the FOI Act.

In the circumstances, there is no need for me to consider the Council-�s further argument that the records contain commercially sensitive information.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision on the applicant-�s FOI request of 20 July 2020. I affirm its refusal to grant access to the various records it considers relevant to that request 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.

Deirdre McGoldrick

Senior Investigator