Whether the Council was justified in refusing access to certain records concerning a fire at the applicant-�s address (a Council property) under various provisions of the FOI Act and whether its searches for such records were reasonable

19 May 2021

Background

The applicant-�s FOI request of 18 May 2020 sought access to all documentation held by the Council in relation to a fire at his address (which is a Council property) on a particular date. The applicant said that the records should include inspection reports, photographs showing the damage and repairs required, reports concerning the cause of the fire, repairs estimates and invoices, insurance claims made by the Council (and attached documentation) and material concerning the Council-�s decisions in respect of carrying out the repairs. The Council-�s decision of 16 June 2020 covered 17 records, eleven of which it released in full and in part. It refused access to the remainder under sections 30(1)(a) (investigations carried out by an FOI body), 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to negotiations) and 37(1) (personal information) of the FOI Act.

The applicant sought an internal review on 18 June 2020 in relation to the Council-�s refusal of some of the fully and partially withheld records and in relation to the adequacy of its searches for records covered by his request generally. The Council-�s internal review decision of 7 July 2020 affirmed its decision on the entirety of the request. It did not address the applicant-�s contention that further records should exist, which effectively amounts to a decision that its searches were reasonable (section 15(1)(a) of the FOI Act). On 13 August 2020, the applicant applied to this Office for a review of the Council-�s decision. He sought a review of the Council-�s searches for records covered by his request. He also sought a review of its refusal of the same records that he had listed in his internal review application.

The Council now says that it applied section 37 to parts of record 2 in error and is happy for it to be released. It has found a record of attendance at the fire that it says was used to process payroll for the firefighters. Although the Council believes that this attendance record is not covered by the request, it is willing to release it subject to redaction of the firefighters-� names. It has also identified two further records that it accepts are covered by the request but which it is not willing to release. I understand that the Council considers these records to be exempt under the provisions already relied on in this case. One of the records is an invoice that the Council says it paid by credit card on 7 May 2020 but which it only received in hardcopy form on 12 May 2020. The other record consists of an email string dated 26 March 2020 (comprised of two emails between the Council and its property claims consultant (the consultant) at 12:06 and 13:26). One of the emails in the string has a number of attachments.

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 correspondence between this Office, the Council, third parties whose interests may be affected by my decision and the applicant, as well as the contents of the records at issue and the provisions of the FOI Act. I note that no reply has been received from the applicant further to this Office-�s notification to him of various material issues relevant to both the scope of the review and my decision on it.

Scope of the Review

As noted above, the Council is willing to release the attendance record subject to the redaction of the firefighters-� names. The applicant has not indicated that he is seeking access to the names concerned. Therefore, I see no need to refer further to either this record, or record 2, which as set out above the Council says it is willing to release.

The Council-�s submission refers generally to third party information in the records not subject to the request. While the records indeed contain information relating to third parties, I am satisfied that the relevant details are covered by the request. However, I cannot carry out a review on aspects of an FOI decision that an applicant has not sought to be reviewed. The applicant sought a review of the Council-�s decision to partially withhold records 10 and 11 and to withhold records 13-17 in full. He did not refer to the Council-�s refusal of record 12 and as a result, I have no jurisdiction to consider the Council-�s decision on this record. Neither can my review extend to any invoices received or other records created by the Council after the FOI request was received. As has been explained to the applicant, it is open to him to make a fresh FOI request for such records.

Having regard to the above, the scope of this review is confined to whether the Council-�s decision to withhold parts of records 10 and 11 and records 13-17 in full was justified under the FOI Act. It will also include the invoice received by the Council on 12 May 2020 and the emails of 26 March 2020. The attachments to one of the emails of 26 March 2020 consist of further copies of records 13, 14, 15 and 16. Also attached is a cover email to record 15, which was not amongst the 17 records initially considered by the Council, and so I will include it in my review.

Preliminary matters

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 the a withheld record for the purpose of granting access to those particular sentences or paragraphs.

It is also noted that, inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-�

Findings -� reasonableness of searches (section 15(1)(a))

It is the Council-�s position that, at this point, it has taken reasonable steps to look for records covered by the applicant-�s request and also that certain of the requested records do not exist. Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The role of the Commissioner in a case involving section 15(1)(a) is to decide whether or not the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. However, this Office has no remit to examine, or make findings on, whether or not the Council should have created further records, the level of detail in records that were created, or the Council-�s record management practices generally. Neither has this Office any role in examining how the Council carried out its functions in dealing with matters arising from the fire.

The Council says that a particular Municipal District (the MD) was responsible for all matters relating to the fire, including any insurance claim. It says that the MD-�s Executive Engineer confirms that he assessed the works required to be carried out and met on-site with consultant, relevant sub-contractors and Council employees. The Council-�s position is that the Engineer and the consultant were able to view the damage first-hand at this on-site meeting and that no photos of the damage were needed or taken. It says that, further to the relevant procurement procedures, the sub-contractors provided estimates for their work on the basis of their on-site examination of the works required and were appointed after the consultant had approved the estimates. According to the Council, the Engineer says that all relevant records are held in emails or on a particular Drive on the Council-�s electronic systems. The Council also says that the Engineer-�s position is that he did not take notes of his various telephone conversations with the consultant.

This Office-�s Investigator observed that one could reasonably expect the Council to hold photos and reports for audit purposes i.e. records that would serve to justify both the steps it took to rectify the damage and its use of public monies. While noting this view, the Council reiterates the Engineer-�s position that photos, reports and similar documentation do not exist. The Council says that it has considered all emails, correspondence with the consultant and sub-contractor estimates that it held at the time of receipt of the applicant-�s request. It explains that the additional invoice was not identified at that time because it had yet to be scanned onto the Council-�s financial system. I note that it does not explain why it found the email string of 26 March 2020 only after the Investigator noted that record 11 referred to such contact. It says only that the Engineer found it further to specific questions from the Council-�s FOI Section arising from the Investigator-�s query. However, it also says that the Engineer confirms that there are no further emails. Finally, it says that the only record held by the Fire Service is the record of attendance referred to earlier.

In inviting the Council-�s submission, the Investigator drew its attention to section 2(5) of the FOI Act, which provides that records held by an FOI body include records under the control of that body. She also referred it to section 11(9), which provides that records held by service providers in relation to a service shall be deemed to be held by the FOI body. She asked the Council to describe the enquiries it made of the consultant and sub-contractors regarding any records that they may hold. The Council-�s response suggests that it understood this question to relate to how it sought quotations for the refurbishment works. The Investigator clarified to the Council that she had intended to establish if it had made enquiries of third parties as to whether they held records covered by the request. She again asked the Council to say if such enquiries were made of the consultant and the subcontractors, and to describe the outcome thereof. In response, the Council says the Engineer-�s position is that he forwarded all documentation between the consultant and the Council to the FOI section and that no other documentation exists. It also says that third party consultation did not take place with the subcontractors because the public body deemed their quotations to be commercially sensitive and did not intend to release them.

As explained earlier, the FOI Act is concerned only with whether records covered by a request exist in the first place and, in the second, whether reasonable steps have been taken to find such extant records. It seems to me, based on the above, that at least some of the records that the applicant expects the Council to hold do not exist. I also accept from the Council-�s submission that it has now carried out reasonable searches of its own systems for records that are covered by the request.

However, I consider it reasonable to expect the Council to also have taken steps to determine what, if any, relevant records might be held by the consultant and sub-contractors. I note that the Council appears to misunderstand the Investigator-�s queries in this regard. However, I have no reason to believe that it took such steps and for this reason, I do not consider the Council to be justified in relying on section 15(1)(a). I annul its effective reliance on this provision. I direct it to take steps to establish if the consultant and sub-contractors might hold records covered by the request. I direct it to make a fresh decision on this specific matter in accordance with the provisions of the FOI Act and to inform the applicant of the outcome in accordance with section 13 of the Act. 

Findings -� substantive exemptions

Having considered the records and the Council-�s arguments, it seems to me that section 36(1)(b) is the most relevant exemption to consider at the outset. I should say here that I am not precluded from considering the application of this mandatory provision to record 11 even though the Council only applied section 37(1) to it.

Section 36(1)(b) -� commercially sensitive information

Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.

Section 36(1)(b)

The records at issue are comprised of invoices issued to the Council by various contractors, emails containing general contacts with the Council-�s consultant about the repairs to be carried out at the applicant-�s home, and an acceptance form relating to the Council-�s insurance claim. The Council-�s position is that most of the records comprise commercially sensitive information about the contractors, such that they are exempt under section 36(1)(b) of the FOI Act. It says that its housing stock is of a standard size and design and that the relevant procurement procedures enable it to obtain one quote for works under a particular amount. The Council says that its Housing department regularly seeks quotations for small works of a similar nature to those carried out on the applicant-�s home. It says that the disclosure of relatively recent prices for the supply of particular goods/services could be used by the contractors-� competitors to undercut the prices concerned when the Council next seeks quotes relating to its housing stock.

The Investigator consulted with the contractors concerned. While not all responded, two stressed the sensitivity of the details concerned and the commercial disadvantage that they would suffer if the records were released.

I have no reason to dispute the Council-�s position that its housing stock is of a similar size and nature. It is reasonable to expect, therefore, that the Council may seek tenders for the provision to it of similar types and quantities of goods and services at various points in the future.

In general, it is reasonable to accept that current pricing information is of much more use to a competitor, and therefore more sensitive from the contractor-�s perspective, than historic pricing information. It is apparent to me that the records at issue are quite recent. Release of the invoices and certain details in other records would disclose the amounts paid for the particular goods and/or services supplied by the contractors to the Council. The invoices contain pre- and post-VAT figures. Given public knowledge of the VAT regime, it is straightforward to arrive at pre-VAT figures by virtue of release of VAT-inclusive figures alone.

The descriptions of the goods and/or services range from quite detailed to general in nature. For instance, one of the more detailed invoices lists the various items and their unit prices. Others give general descriptions of the entirety of the goods and services provided along with the total costs involved. Regardless of the extent of detail, however, I am satisfied that an analysis of the amounts involved and the descriptions of the goods and/or services concerned can produce at least reasonably accurate estimates of the contractors-� unit prices and/or hourly rates. I should also say that the details of the goods and services supplied as set out in the records are more detailed than what one would glean from observing the overall repairsin situ.

Having regard to the above, I accept that the publication to the world at large of the costs and descriptions of the various goods, materials and services supplied to the Council in relation to the applicant-�s home could enable the contractors-� competitors to undercut these prices should the Council seek tenders for similar works in the near future. I accept that this could prejudice the contractors-� competitive position in the conduct of their businesses. Accordingly, I find that section 36(1)(b) applies to records 13-16, the invoice paid on 7 May 2020 and the amounts charged by two named contractors as contained in the first two bullet points in the email of 26 March 2020 at 13:26.

I should say that while section 36 enables the protection of third party commercially sensitive information, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. The Council contends that the records are commercially sensitive from its own perspective given that they concern the ongoing insurance investigation and negotiations. In inviting the Council-�s submissions, the Investigator noted that the records contain details of and quotes for individual aspects of completed works and details of the overall costs incurred by or on behalf of the Council. She said that the Council had not described the insurance investigation or negotiations that it said were ongoing, when these might conclude, or how disclosure of the withheld details could impact on these matters.

The Council-�s submission says that the investigation and negotiations with its insurer are ongoing and, while costs have been agreed, the monies have yet to be paid to the Council. It says that disclosing the records before the conclusion of the investigation and negotiations process, and before the case is closed with its insurers, could prejudice the effectiveness of the investigation and negotiation process as a whole. I understand this to be an argument that release of the records could impact on the amount that it may actually receive from its insurer, which could prejudice its competitive position in that regard. 

However, the Council does not explain how this envisaged harm could arise. Neither does it refer to any particular details in the records that could cause such harm, if released. It seems to me that the records are largely concerned with the details and costs of the repairs carried out. To a lesser extent, they concern the Council-�s insurance claim, in that they disclose the amount claimed. However, they do not seem to contain any analysis of the cause of the fire or disclose details of any such investigation that may have been carried out. They do not seem to contain details of any negotiations with the Council-�s insurers. I see no reason to consider that section 36(1)(b) applies on the basis of the Council-�s assertion regarding the impact of release of the records on any ongoing insurance investigation and/or negotiations.

I note, however, that the Investigator put the applicant on notice of a further argument that seemed relevant to her, having regard to the Council-�s arguments generally and the contents of the records. It is reasonable to accept that, if contractors have concerns over the publication of their current commercially sensitive information to the world at large for the reasons set out above, they might either submit higher tender prices to the Council in future, or seek to provide lower quality goods/services for the same price or a combination of both. Some might decide not to tender at all. Any of these outcomes could impact on the Council-�s ability to carry out repairs etc. to its housing stock generally, as well as its ability to do so at current standards and at a reasonable cost to the public purse.

As I have set out above, I accept that the Council may seek tenders for the provision to it of similar types and quantities of goods and services at various points in the future. Thus, it seems to me that the records also contain information that could prejudice the Council-�s competitive position in any similar tender processes in which it may engage regarding houses similar to the applicant-�s home. I find that this is a further, separate reason for finding that section 36(1)(b) applies to the records and parts of records I have already found to be so exempt.

In addition, I note that the third bullet point in the email of 26 March 2020 at 13:26 refers to a particular cost of supplying certain goods and services. It does not identify the supplier involved. While I do not see how the contractor-�s interests could be harmed by such disclosure, for the reasons set out above I accept that disclosure could prejudice the Council-�s interests in relation to the future supply of similar such goods and services.

Furthermore, record 11 (which consists of emails between the Council and the consultant) and the final bullet point in the email of 26 March 2020 at 13:26 set out the details and costs of certain work carried out by Council staff. It seems to me that such details could be of use to any contractors that the Council may seek to engage in the future to carry out the works concerned. I also accept that the total amount of the repairs and the amount sought to be reimbursed by the Council from its insurers as contained in records 11 and 17 (the acceptance form) discloses information that is at least indicative if not affirmative of how much the Council is prepared to spend in a refurbishment similar to the applicant-�s. I find that section 36(1)(b) applies to these details also.

To summarise, therefore, I find that section 36(1)(b) applies to the following:

• details/costs of works to be carried out by Council staff and the total amount of repairs sought to be reimbursed from the Council-�s insurers, as contained in record 11;
• records 13-16 and the invoice paid on 7 May 2020 in full;
• the total amount of repairs sought to be reimbursed from the Council-�s insurers, as stated three times in record 17;
• the four bullet points in the email of 26 March 2020 at 13:26.

However, based on the Council-�s arguments and my examination of the records, I do not consider that any further details qualify for exemption under section 36(1)(b). The remainder of records 10 and 11 concern general contacts with the Council-�s consultant. The remainder of the emails of 26 March 2020 and record 17 relate to the insurance matter generally. The Council has not explained how disclosure of such details could affect its own interests for the purposes of section 36(1)(b).

I accept that these records contain the consultant-�s business contact details, as does record 17. As I said above, the records relate to the insurance matter generally. Records 10, 11 and the email thread of 26 March 2020 also name the particular individual within the consultant-�s business who dealt with the Council-�s claim. The various records also contain a mobile telephone number that appears to be that of the particular individual concerned.

It was unclear from the Council-�s decision whether it had withheld the above information because it considered it to comprise the consultant-�s personal or commercially sensitive information. Thus, the Investigator consulted with the consultant. She also told the consultant that, if no comments were received, it would be assumed that the consultant held no objection to release of the details concerned. The consultant replied upon receipt to indicate that, while it needed to consider the matter further, it did not see anything in the records that affected its business. The Investigator reiterated that the consultant was welcome to make arguments if it felt that the information was exempt. The consultant later sought and was given further time to consider its position. No comment has been received.

In my view, the details in these records that concern the consultant-�s business are very general. Neither the Council nor the consultant has made any arguments that as to why the relevant details comprise information that qualifies for exemption under section 36(1)(b) of the FOI Act. I find that section 36(1)(b) does not apply to the remaining details.

I should also say that the Council-�s submissions and the available factual information do not enable me to find that section 36(1)(c) applies to the remaining records. The Council does not address the Investigator-�s observation that it had not described the negotiations that it says are ongoing, when these might conclude, or how disclosure of any of the withheld information could impact on these matters. As I have noted, the records do not, of themselves, seem to reveal anything about negotiations between the Council and its insurer or any other party. I have found the only details that might amount to a negotiating position (i.e. the total sum claimed by the Council and some component costs) to be exempt under section 36(1)(b). The Council has not explained how disclosure of the remaining details could prejudice the conduct or outcome of the negotiations to which it refers, which as I noted above it has in any event not described.

Section 36(2) - exceptions to section 36(1)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3) - the public interest

Having found that section 36(1)(b) of the FOI Act applies in respect of the specific records and parts thereof set out above, I shall now consider section 36(3) of the FOI Act. In relation to the public interest test contained in section 36(3), 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 the eNet judgment, 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 inThe 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. I should also say that I consider the Court-�s comments in the above judgments relevant to the consideration of public interest tests generally.

Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. It follows that I cannot take account of any private interest that the applicant may have in obtaining access to the records, even though they concern the property where he lives.

I note that the records at issue represent only a partial picture of the Council-�s engagements with third party contractors and in relation to the insurance claim.  I should say that this of itself is not a reason for finding that the public interest does not weigh in favour of directing release of the relevant records.

The total amount sought to be reimbursed by the Council from its insurer reflects the total costs of the works carried out and paid for by public monies. Release of the invoices will disclose the identities of some of the contractors, the amounts paid to them and the goods and services that they delivered. Such disclosure enables an assessment of matters such as the quality of the goods and services provided and the value for public money achieved by the Council accordingly. In addition, disclosure of the invoices and other records may enable at least a partial assessment of the Council-�s compliance with relevant procurement processes. The records also disclose some information regarding the Council-�s attempts to seek reimbursement from its insurer, which concerns its prudent management of public monies. I am not aware of any information in the public domain that achieves the above purposes.

On the other hand, disclosure of the records will reveal current information about the contractors-� pricing structure that could prejudice the contractors-� commercial interests. Disclosure will also reveal current information that could prejudice the Council-�s interests in the management of future public procurement processes regarding similar housing stock. In turn, this could have implications for the Council-�s prudent expenditure of public monies. It may also affect the quality and standard of the public assets comprising the Council-�s housing stock and the availability of that stock for prompt allocation.

Having considered the matter carefully, I believe that the public interest weighs in favour of protecting the above records and parts of records. I accept that such an outcome will not, of itself, enable any analysis of matters that I have identified above. However, my finding reflects the current nature of the details. The passage of time may well reduce the sensitivity of the details from the perspective of the contractors and/or the Council, although it would not be appropriate for me to speculate on when this might be. I should also say that I considered directing the release in the public interest of those parts of the invoices that identify the individual contractors, which details I do not consider to be particularly sensitive. However, I do not feel that this would be in keeping with the Commissioner-�s approach to section 18 of the FOI Act.

Section 37 -� personal information

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 (iii) information relating to the employment or employment history of the individual. 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. Furthermore, section 2 of the FOI Act provides that section 37 does not apply to the name of a person providing a service to an FOI body or anything written or recorded by the individual in the course of and for the purposes of the provision of the service.

The cover email to record 15 discloses the name and various contact details for an individual (acting in a private capacity) who forwarded the invoice to the Council on behalf of the contractor concerned. I am satisfied that the cover email comprises personal information relating to the individual concerned. While the remaining 13 words of this record do not of themselves comprise personal information, I do not consider it to be in keeping with this Office-�s approach to section 18 to consider release of such details in their own right. I find that section 37(1) applies to the cover email to record 15.

As noted earlier, record 11 comprises contacts between the Council and the consultant in relation to the insurance claim. Record 11, the email thread of 26 March 2020 and parts of records 10 and 17 disclose contact details for the consultant-�s business. They also include the mobile telephone number of the person whom I take to be the Council-�s contact within the consultant-�s business. As I have already set out, the Investigator invited comment from the consultant but none was received.

I accept that the mobile telephone number of the Council-�s contact within the consultant-�s business is personal information about the contact. I find that this detail is exempt under section 37(1) of the FOI Act. However, I have no reason to consider that the remaining details described above comprise personal information for the purposes of section 37(1).

I do not consider the exceptions to section 37(1), as set out in section 37(2), to apply in this case. In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. 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

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.

Release of the personal information at issue will provide, at most, a minimal insight into the matters I identified when considering the public interest test at section 36(3). However, such release will breach the rights to privacy of the individuals concerned. I am aware of no public interest factors that might serve to support the public interest in the release of that information which, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply.

Section 30(1)(a) -� effectiveness of tests

I will now consider the Council-�s refusal of access to the remaining withheld records i.e. the remainder of records 10, 11 and 17 and the emails of 26 March 2020. The Council relies on section 30(1)(a) of the FOI Act.

Section 30(1)(a) provides that a head may 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, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. Furthermore, section 30(2) provides that subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.

To recap, records 10, 11 and the emails of 26 March 2020 comprise of contacts between the Council and the consultant regarding the claim and record 17 is an acceptance form relating to the Council-�s insurance claim. I have found any details therein concerning quotes for the individual works and the Council-�s total expenditure/claim to be exempt. I have noted that the records do not seem to me to contain any analysis of the cause of the fire or disclose details of any such investigation that may have been carried out. I have also described the Council-�s assertions regarding the various harms that it envisages arising from the release of the records. However, it has not explained how those harms could arise having regard to the contents of the records or why its expectation of such harm is reasonable. In particular, it does not describe what investigations were carried out, either on foot of the fire itself or further to the insurance claim. It does not explain how disclosure of the records could prejudice the effectiveness of such investigations or prejudice the procedures or methods employed for their conduct. Having regard to the contents of the records as described above and the lack of facts and argument before me as to why section 30(1)(a) applies, I find that these records are not exempt under this provision of the FOI Act.

As already set out, the Council also asserts that release of the records could impact on ongoing negotiations with its insurers. It has not relied on section 30(1)(c), which provides for the refusal of records that could, in the opinion of the head, reasonably be expected to disclose an FOI body-�s past or future negotiating positions or any plans, criteria etc. that it might use or follow for the purpose of such negotiations. In any event, the Council does not explain what types of negotiations may remain to be carried out in the circumstances or when such negotiations might end. Neither does it identify what details in the records might affect those matters or how this could arise. There are no details in the submissions that could inform me in this regard. Of themselves, the records do not seem to me to reveal anything about negotiations between the Council and its insurer or any other party. Based on all of this, I see no reason to find that section 30(1)(c) applies to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I annul the Council-�s reliance on section 15(1)(a). I direct it to take steps to establish if the consultant and sub-contractors might hold records covered by the request. I direct it to make a fresh decision on this specific matter in accordance with the provisions of the FOI Act and to inform the applicant of the outcome in accordance with section 13 of the Act. 

I annul the Council-�s refusal of certain details and direct that access be granted to them:

• Record 10: release the withheld parts except for a mobile phone number for the Council-�s contact within the consultant-�s business;
• Record 11: release the withheld parts except for a mobile phone number for the Council-�s contact within the consultant-�s business, a quote for and details of certain works to be carried out by Council staff and the figure for the Council-�s total claim;
• Record 17: release except for a mobile phone number for the Council-�s contact within the consultant-�s business and the total cost figure (quoted three times); and
• Emails of 26 March 2020: release except for the four bullet points in the email at 13:26 and a mobile phone number for the Council-�s contact within the consultant-�s business.

I affirm the Council-�s refusal to release the remaining records and parts of records under sections 36(1)(b) and 37(1) of the FOI Act.

If it has not done so already, I would ask the Council to promptly release the attendance record (subject to redaction of the firefighters-� names) and record 2.

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.

Deirdre McGoldrick

Senior Investigator