Whether the Council was justified in refusing access to records relating to complaints and incidents at a named housing estate

3 May 2022

Background

In a request dated 24 March 2021, the applicant made an 11-part request seeking access to various records relating to complaints and incidents at a named housing estate. In a decision dated 23 April 2021, the Council identified 18 records as relevant to the request. It released, in full or in part, 14 records and refused access to the remaining four, citing sections 30(1)(a) and (c), 35(1)(a) and 37 of the FOI Act.

On 26 April 2021, the applicant sought an internal review of the Council's decision on records 17 and 18 only, following which the Council affirmed its refusal of the two records. In the schedule of records provided, record 17 was described as "Complaint" while record 18 was described as "Insurance File". On 28 June 2021, the applicant applied to this Office for a review of the Council's decision.

During the course of the review, the Council renumbered the records at issue so that record 17 now comprises records 17 to 24, while record 18 now comprises records 26 to 41. In referring to the records at issue, I have adopted the Council's revised numbering in this decision. A copy of the revised schedule of records was given to the applicant. In that schedule the Council listed section 31(1) as applying to two records. The Council subsequently accepted that neither section 31(1) nor section 35(1)(a) applied to the records. The Council also revised its position in relation to some of the records and it released parts of records 17 to 21 and record 22 in full to the applicant.

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 applicant and to the submissions made by the Council in support of its decision. 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

Having examined the records, I am satisfied that the information redacted from record 19, and some of the information redacted from records 21 and 23 does not relate to the applicant's request and I have, therefore, excluded that information from the scope of this review. Moreover, as one of the pages in both records 32 and 33 is the same as record 4 which was released to the applicant, I have also excluded the relevant page from the scope of the review.

Accordingly, this review is concerned solely with whether the Council was justified in its decision to refuse access, under sections 30(1)(a) and (c), 35(1)(a) and 37 of the FOI Act, to the withheld parts of records 17, 18, and 20, the withheld parts of records 21 and 23 that are within scope, and the entirety of records 24 and 26 to 41.

Analysis and Findings

Section 37

The Council refused access, in full or in part, to records 17, 18, 20, 21 and 26 to 41 under section 37 of the FOI Act. Having examined the information withheld from records 23 and 24, I am satisfied that section 37 is also relevant to those records. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relatessolelyto the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the medical history of the individual and (xiii) information relating to property of an individual (including the nature of the individual's title to any property).

The records at issue in this case concern the Council's response to complaints of an oil spillage and also an incident which led to a public liability claim against the Council at the named housing estate. Having examined the records, I am satisfied that their release of the records would involve the disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.

Section 37(2) 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)

Section 37(5) 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 be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the eNet Case"), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". 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.

In relation to the issue of the public interest, it is also important to have 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] IESC 26. 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.

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 considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the records and parts of records at issue are exempt from release, under section 37(1) of the Act.

As I have found section 37 to apply to all of the withheld information, I do not need to consider the application of the other exemptions claimed by the Council.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision. I find that the Council was justified in refusing access to the withheld information in records 17, 18, 20, 21 and 23 and to records 24 and 26 to 41 in full under section 37 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.
 

Stephen Rafferty
Senior Investigator