Whether the Council was justified in refusing access to reports relating to a particular wall built on lands adjoining the applicant’s property and to a resultant void between it and a wall owned by the applicant

14 June 2021

Background

This FOI request relates to a particular wall that was built on lands adjoining the applicant’s property, and which I understand was built by a party or parties other than the applicant. I also understand that, as a result of the wall’s construction, there is now a void between it and a wall on the applicant’s property.

The applicant’s FOI request of 3 June 2020 sought access to reports by named persons regarding the wall and void. The Council’s decision of 24 June 2020 refused access to two records under section 32(1)(a)(ii) of the FOI Act. It said that the records concern an active file and that releasing them could reasonably be expected to prejudice or impair the enforcement of or compliance with sanitary services law. The applicant sought an internal review on 28 July 2020. The Council’s internal review decision of 20 August 2020 affirmed its decision on the request. That decision referred to section 35(1)(a) of the FOI Act (information given in confidence). The applicant asked the Council to clarify why it was relying on this exemption, given that the information concerns engineers’ reports it had commissioned. The Council replied that its internal review decision should have referred to section 32(1)(a)(ii), which had been cited in the attached schedule of records. On 15 February 2021, the applicant applied to this Office for a review of the Council’s decision. During the review, the Council identified a further report covered by 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 examined the records at issue and also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Council’s refusal of the applicant’s request is justified under the provisions of the FOI Act. It does not extend to examining any other matter, including the Council’s performance of its functions insofar as any matter relating to the wall is concerned, or any issues to do with the wall in general. In addition, the Council’s handling of the FOI request (such as its identification of the third record during this review rather than further to its initial consideration of the request) is not relevant to my decision.

Preliminary Matters

At the outset, I will address the applicant’s argument that she has insufficient details about why the information in the records might be considered to be exempt under section 37(1) of the FOI Act (personal information). Her comments arise from an email sent to her by this Office’s Investigator on 29 March 2021, putting her on notice of the relevance of this provision. 

It is this Office’s policy that parties to a review should be notified of material issues arising for consideration, including applicable exemptions not previously raised. In referring the applicant to section 37(1), the Investigator briefly explained that she felt that information about the wall/void concerns information relating to the property of the person(s) responsible for building the wall and on whose land it was constructed. She referred the applicant to section 2 of the FOI Act, which defines personal information and gives examples of what must be considered to be personal information, and highlighted example (xiii) i.e. information relating to the property of the individual. I am satisfied that the Investigator’s email gives the applicant sufficient notice of the relevant material issue. Furthermore, this Office must comply with the requirements of section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions.

In addition, the release of records under FOI is generally understood to have the same effect as publishing them to the world at large. Such release must be distinguished from e.g. disclosure of records under Discovery procedures for the purpose of court proceedings, which place limits on the further use to which a discovered record may be put. Finally, section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making the FOI request.

Analysis and Findings

Personal information - section 37

The applicant says that I cannot consider this exemption because the Council has neither done so nor justified its application. She says that the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5 (the ENet judgment) says that the statutory presumption continues to apply to records alleged to fall within a mandatory exemption. She also refers to the provisions of section 22(15), the pertinent part of which provides that nothing shall prevent the Commissioner from taking into account that the requested information is personal information relating to an individual other than the requester. She says that this, however, does not entitle the Commissioner to automatically apply a mandatory exemption in the circumstances of this particular case.

While the ENet judgment does indeed require FOI bodies to justify their decisions, it also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, it says that the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal. I am satisfied that I am entitled to consider the relevance of section 37 in this case. Furthermore, it is difficult to understand the applicant’s apparent position that I am entitled to disregard the mandatory nature of section 37(1) even if I am satisfied that it applies in the circumstances. For avoidance of doubt, I do not accept her view.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record where access to the record would involve the disclosure of 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 (xiii) information relating to property of the individual (including the nature of the individual’s title to any property). It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements at (a) or (b) of the definition to also be met.

The applicant says that the information at issue must be about an identifiable individual in order to qualify as personal information in the first instance. She says that the examples concern matters that are readily recognisable as individual personal matters that would be unique to the individual, are all about them as a person, and describe something personal to them relating to private matters. She distinguishes such information from details about an inanimate structure, as in this case. She says that example (xiii) is concerned with information that discloses something personal about the individual, such as the nature of their title. She says that one must distinguish between information that is about an individual and information concerning a physical description of a property i.e. information that is about a particular matter but which may contain some element of a person’s personal information in it.

The applicant says that she has not requested information about an identifiable individual and that the records cannot contain personal information for the purposes of the FOI Act. She says that section 37(1) cannot apply to records comprising engineering reports generated and obtained by an FOI body in carrying out its statutory functions in relation to the inspection of a wall and void arising from a health and safety matter. She says that in real terms, the records are likely to disclose only the Council’s factual findings in relation to these matters.

The applicant says that the Council has confirmed to her that there was no issue about release of the records constituting any breach of a duty of confidence or disclosing information obtained in confidence under section 35. She says that the purpose of the FOI Act would be seriously undermined if an FOI body could exempt records prepared by it “simply by having personal information cast into them, which personal information is not requested and not relevant to the factual findings of the records.” She says that section 37 “could become a very popular catch all ground for reasons to refuse disclosure that could not otherwise be justified under section 35 and section 36 [commercial sensitivity] of the FOI Act”. She says that personal information can be redacted from the records further to the provisions of section 18. Finally, she refers to paragraph 80 of the ENet judgment, in which the Supreme Court summarises the basis of the Information Commissioner’s decision that was under appeal to it. Given that the Supreme Court went on to disagree with the basis of the Commissioner’s decision, it is not clear to me how the relevant details are relevant to this case and I have not considered them further.

The records in this case are indeed engineering reports, created by or on behalf of the Council regarding health and safety issues concerning the wall and void. Nonetheless, example (xiii) is concerned with information relating to the property of an individual. It is not confined to the nature of an individual’s title. Neither does it prescribe that information relating to the property of an individual must be of a particular sensitivity. A wall on land owned by an individual is part of that individual’s property. It is not necessary for a record to name the individual landowner in order for it to be captured by example (xiii).

Having examined the records at issue in this case, I am satisfied that they are wholly captured by example (xiii) of what comprises personal information about identifiable individuals. In my view, details of health and safety issues (whether positive or negative) concerning the relevant wall’s construction comprise information relating the property of the individual(s) who built the wall and/or on whose lands it is situated. The records also refer to particular individuals. These are not Council employees or contractors. I am satisfied that even if such names were redacted, the relevant individuals would be identifiable from the context of the remaining details in the overall circumstances of this case.

I should also say that I must make my decision based on the contents of the particular record before me. I have no role in determining what it should or should not contain.

The applicant says that the resultant void is partially on her property and that the information concerns property that is part owned by her. I accept that the reports also contain information relating to the applicant’s property. However, in the overall circumstances and having considered the records carefully, I am satisfied that such information is inextricably linked to information relating to the property of the individual(s) that built the wall and/or on whose lands it is situated (joint personal information). Therefore, I am satisfied that this is not a case where it is possible to grant partial access to the records.

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. As noted, it is not feasible to separate out information relating solely to the applicant’s property. I find that the records are exempt under section 37(1) of the FOI Act. The Council’s clarification of its internal review decision does not preclude me from making this finding. Section 37(1) is, however, subject to the consideration of sections 37(2) and (5).

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. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). Insofar as the records may be characterised as comprising joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of other individual(s).

Section 37(2)(e) provides that section 37(1) does not apply if disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual. The applicant says that the void that has been created by the construction of the wall represents a serious and imminent danger to the life and safety of herself, her family and other members of the public.

In this regard, in past decisions, the Commissioner found that the degree of danger envisaged in section 37(2)(e) must be grave and that danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes.

The applicant has provided a copy of an independent report, dated 5 March 2021, which she believes is critically important in illustrating the gravity of the risk as it pertains to a public safety matter. She says that the risk of injury is very serious and very imminent. She says that the FOI body is aware of the situation. She says that the contents of the report have been validated by the confirmation of the Council itself, which has an active file open in relation to the matter.

I note that the Council holds an active file on the matter. As I have already stated, I have no powers under the FOI Act to consider the adequacy of the Council’s performance of its functions insofar as any matter relating to the wall is concerned. I have also considered the content of the records at issue and having given the matter careful consideration, I do not consider the applicant’s arguments to be an appropriate basis to direct release of the details concerned. In the overall circumstances, I do not believe that there is the requisite link between disclosure of the details therein and the avoidance of an imminent danger to the applicant and her family or any other individual. Furthermore, I do not believe that it would be appropriate to direct the disclosure of the records at issue under section 37(2)(e) on the basis that the matter to which they relate is clearly of great concern to the applicant or others. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

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 ENet judgment, wherein 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 it is in the interests of sanitary services law that there is full transparency and disclosure to her of the records sought because they concern matters of health and safety and affect her property. She says that there is a clear link between disclosure of the records and accountability as to what steps should be taken by the FOI body in the performance of its functions.  She says that refusal of the records prejudices and impairs her health and safety and that of her family and other members of the public. She says that her property is directly impacted upon by the hazards the subject of the requested records and that she should know what the reports say.

As stated earlier, I cannot have regard to any private interests that the applicant may have in obtaining the requested records. While the records may be of interest to/may contain details concerning a number of parties or the public generally, this does not equate to a true public interest to which I may have regard for the purposes of the FOI Act.

Disclosure of the records would reveal information about the safety of the structure and the void. However, FOI is concerned with the actions of FOI bodies rather than those of private individuals, such as the individual(s) who built the wall that resulted in the void. I do not believe it would be 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 either the building of the wall and/or with the ensuing creation of the void.

I accept that disclosure of the records would enable an insight into the Council’s examination of various matters relating to the wall and the void, including the health and safety aspects thereof. This would enable an assessment of the adequacy of the various steps taken by the Council to date. That said, I do not believe it would be appropriate for me to direct the release of the records on the basis that the applicant is dissatisfied with the Council’s examination or handling of matters arising from construction of the wall. Furthermore, enabling an insight into the Council’s performance of its functions 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 (an) identifiable individual(s) other than the applicant. 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 records that, on balance, outweigh the right to privacy of the individual(s) to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In the circumstances, there is no need for me to consider the Council’s argument that the records are exempt under section 32(1)(a)(ii) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision on the applicant’s request on the basis that the withheld records are exempt 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