Whether the Council was justified in refusing access to various records relating to a named housing estate and records relating to named family member on whose behalf the request was made, under sections 15(1)(a), 30(1)(a) and (c), 35(1)(a), 37 and 42(m)(i) of the FOI Act

19 October 2022

Background

In a request dated 2 June 2021, the applicant submitted a nine-part request to the Council seeking access to various records relating to a named housing estate, including records relating to the development and taking in charge of the estate, records of complaints made, records relating to a specified incident, and records relating to a named family member on whose behalf the request was made. Having considered the request, the Council determined that search and retrieval fees should be charged and it sought payment of a deposit. The applicant paid the full amount of the fee. The Council also extended the time for processing the request and subsequently issued its decision on 27 July 2021 wherein it part-granted the request. It withheld certain information under section 37 of the FOI Act.

The applicant sought an internal review of that decision on 2 August 2021. Among other things, he said he was not satisfied that all relevant records had been released to him. In its internal review decision of 24 August 2021, the Council released additional records, but refused access to certain records, in full or in part, on the basis that sections 15(1)(a), 30(1)(a) and (c), 35(1)(a), and 37 of the Act applied. In a letter dated 29 August 2021, the applicant sought a review by this Office of the Council-�s decision.

During the course of the review, the Council revised its position and released some further records in full and some records in part. Of the 84 records identified, 44 records have been released in full, partial access has been granted to 28 records and access to 12 records has been refused in full.  The Council also revised its position during the review and is no longer relying on section 35(1)(a) to withhold certain records. It also claimed that section 42(m) applied to a small number of records. 

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 communications between this Office and both the applicant and the Council on the matter, and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access, in whole or in part, to certain records under sections 30(1)(a) and (c), 37(1) and 42(m)(i) of the FOI Act, and under section 15(1)(a) of the Act, to any records apart from those already released relating to parts 2, 3, and 4 of the request on the ground that no further relevant records exist or can be found. 

For the sake of clarity, 40 records remain under consideration. The records refused in full are records 9, 10, 15, 16, 18, 21, 36, 37, 39, 40, 45, and 76. The records which have been withheld in part are records 1, 3, 5, 7, 8, 11-13, 14, 17, 19, 22-31, 35, 38, 41, 74, 75, 77 and 78.

Analysis and Findings

Section 15(1)(a)

The Council-�s position is that no records exist for parts 2 to 4 of the request. Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Where a body relies on section 15(1)(a), the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. It is not generally the Commissioner-�s role to search for records.

The Council said that the records sought at parts 2 to 4 of the request relate to the construction stage of the estate and are not requested or held by the Council. The developer provided certification to the Council that the works were completed in accordance with the planning permission.  The Investigator wrote to the applicant and advised him of the Council-�s position.  I note that the applicant did not comment specifically on the details provided, nor did he provide any information to support his contention that further relevant records might exist.  

Having considered the Council-�s explanation as to why these records do not exist or cannot be found, I am satisfied that the Council taken all reasonable steps to ascertain the whereabouts of the records sought. I find that the Council was justified in refusing access to records relevant to parts 2, 3, and 4 of the request under section 15(1)(a) of the Act.

Section 30(1)(c)

The Council refused access to records 9, 10, 15, 18, 36, 37, 39 and 40 in full, and records 3, 5, 7, 17, 26, 28, 29, 41 and 78 in part under section 30(1)(c). That section 30(1)(c) provides for the refusal of a request if the FOI body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by Government or the FOI body of its negotiations. However, such issues may be relevant to the public interest test in section 30(2).

The records at issue mostly relate to various aspects of the taking in charge of the named estate and include internal correspondence and notes and correspondence with the developers of the estate.   

The Council argued that release of these records could harm its ability to defend its position in an open investigation relating to an ongoing public liability claim against the Council.  It also argued that release of these records could disclose positions likely to be taken by the Council-�s insurers with regard to the claim.

The applicant stated that neither he nor any member of his household had been a party to any negotiations with the Council and that they had no knowledge regarding any negotiations between the Council and other parties.  This does not exclude the possibility that other negotiations may have, are or will take place. 

Having examined the records, most of which are dated between 2010 and 2015, I have not been able to identify any information in these records which, if released, would disclose positions to be taken or plans, procedures, etc. to be followed for the purposes of any negotiations in relation to the ongoing public liability claim. I find that section 30(1)(c) does not apply to the records in question.

Section 37

The Council refused access to records 16, 18, and 21 in full and records 1, 5, 7, 8, 11, 12, 13, 14, 17, 19, 22, 23, 24, 25, 27, 28, 29, 30, 31, 35, and 38 in part under section 37 of the Act. Section 37 is a mandatory exemption which serves to protect the privacy rights of third parties and as such, I deem it appropriate to consider its applicability even when not claimed by the Council.  Having reviewed all of the records, I am satisfied that it is also appropriate to consider the applicability of section 37 to records 9, 10, 15, 37, and 39, and the withheld information in records 3, 26, 41, 77 and 78.

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 relates solely to 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 (ii) information relating to the financial affairs 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 taking in charge by the Council of the named housing estate, including correspondence with the developer and other related records, records of complaints made, and records relating to a specified incident. Having examined the records, I am satisfied that release of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant, or joint personal information relating to the applicant and other individuals which is inextricably linked, 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 true public interest 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 section 37(1) of the Act applies to records 10, 15, 16, 18, 21 and 37 in full and to the withheld information in records 1, 3, 5, 7, 8, 11, 12, 13, 14, 17, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 35, 38, 77 and 78.  I also find that section 37 applies to the names and contact details of third party individuals in records 9, 39 and 41.  

Section 42(m)(i)

The Council refused access to records 45 and 76 in full, and records 74, 75, 77 and 78 under section 42(m)(i). As I have found the withheld information in records 77 and 78 to be exempt under section 37 above, it is not necessary for me to consider whether section 42(m)(i) also applies.

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.
For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement
The applicant-�s request was for records of complaints and incidents at the named estate with details which could identify the complainant removed or redacted. Having examined the records, I find that the release of the withheld information in the records could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. I am satisfied that the first condition is met.

Second Requirement
The second requirement is that information must have been provided in confidence. The records at issue concern complaints of pollution and littering. This Office accepts, as a general proposition, that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future. Given my finding that the release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information, I find that the information was provided in confidence in this case.  I am satisfied that the second condition is met in this case.

Third Requirement
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council has a responsibility in relation to dealing with littering under the Litter Pollution Act 1997. As the records at issue concern complaints of alleged littering and pollution, I am satisfied that the third requirement is met in this case.

As each of the requirements have been met, I find that section 42(m)(i) applies to the refused information in records 45, 74, 75 and 76. 

Section 30(1)(a)

As the withheld information in record 77 has been found to be exempt under section 37 above, it is not necessary for me to deal with the application of section 30(1)(a) to this record.   

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I find that the Council was justified in refusing access to parts 2, 3, and 4 of the request under section 15(1)(a).  I find that section 30(1)(c) does not apply to any information.  I find that section 37 applies to records and parts of records as set out above.  I find that section 42(m)(i) applies to records as set out above.     

As I have not found any exemption claimed to apply to them, I direct the release of records 36 and 40, and the remaining information in records 9, 39 and 41, apart from the information to which I have found section 37 to apply, namely the names and contact details of third party individuals.

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 requester 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.

Stephen Rafferty
Senior Investigator