Whether the Council was justified in refusing access to certain records, in whole or in part, relating to the car park at Swangate, Athenry under sections 15(1)(a), 15(2)(a), 31(1)(a), and 37(1) of the Act

24 August 2022

Background

On 29 March 2021, the applicant sought access to the following:   

-� all relevant information pertaining to the Galway County Council public car park located at Swangate, Athenry. Of particular interest are the initial engineer's drawings and correspondence between the various interest bodies (ie. the Roads Division of Galway Co Co; NRA; GAA and any prescribed bodies who were consulted throughout the process) and our locally elected County Council representatives-�

On 28 April 2021 the Council issued its decision. It identified 30 records as falling within the scope of the applicant-�s request. It granted access in full to 17 of the records and partial access to nine further records, with the redaction of certain information under section 37(1) of the Act. It refused access to two records (records 3 and 28) under section 31(1)(a) and two records (records 29 and 30) under 15(2)(a). Records 29 and 30 are described as two specified Part 8 Planning Application files.

On 25 May 2021 the applicant sought an internal review of that decision. Among other things, he argued that certain relevant records relating to the -�Part 8 Planning Process-� were missing and that the redactions made were excessive.

In its internal review decision, the Council refused access to records relating to the Part 8 Planning Application files under section 15(2)(a) on the ground that they are available for public inspection. No reference was made to the other records withheld in full or in part in the original decision. On 21 December 2021 the applicant applied to this Office for a review of the Council-�s decision.

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 applicant-�s comments in his application for review 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. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it provided with its original decision.

Scope of Review

In his correspondence with this Office, the applicant argued that further records relevant to his request exist and should have been released to him. The Council-�s position is that no further relevant records, other than those referenced in its original and internal review decisions, exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the Act.

Accordingly, this review is concerned solely with whether Galway County Council was justified in refusing access, in whole or in part, to certain records under sections 15(1)(a), 15(2)(a), 31(1)(a), and 37(1) of the FOI Act.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Analysis and Findings

Section 15(1)(a) -� adequacy of searches

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. In such cases, 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 and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the review process, this Office-�s Investigator asked the Council about the steps it had taken to search for records within the scope of the request and about its relevant record-management practices. The Council-�s response to those queries was provided to the applicant and is set out in summary here. It includes a statement of the offices to which the FOI request was circulated, the searching mechanisms utilised, and the types of locations and facilities of which searches were carried out for relevant records. The applicant was provided with an opportunity to comment on these searches but did not avail of this opportunity. 

In its submission, the Council provided details of the electronic searches conducted by the Roads Department within the Council as well as searches that were undertaken of the hard copy file in County Hall. In addition, the Council indicated that searches were also conducted in the Planning Department in relation to Part 8 planning applications in relation to the land at issue.

The Council indicated that two Part 8 planning files exist in relation to the site in question under specified references. I will consider the applicability of section 15(2)(a) to these two files further below. In response to the applicant-�s contention that a further planning file existed, the Council indicated that no further planning file with respect to the site at issue was located; either in the Planning Department or the Loughrea Office.

The Investigator also posed a number of specific questions to the Council.  When queried about a reference in the original decision to the fact that any records relevant to the applicant-�s request which may be held in the Loughrea Office could not be retrieved, the Council indicated that following further searches no further records were identified. The Investigator also queried three specific records which the applicant believed existed but had not been identified; namely:

a. A letter from the applicant requesting details on the walls and trees which would be destroyed by the roundabout construction at a specified junction,

b. A letter from the Planning Office to the GAA County Board around May 2005 requesting information about the building planned along the perimeter of the -�New Road-�, and

c. A letter in late 2005 from a named company to the Planning Office regarding ownership of a named road.

With regard to part (a) the Council indicated that no letter from the applicant requesting details in relation to walls or trees was located. With regard to part (b), the Council indicated that the only correspondence relating to the GAA was an email thread encompassed in record 12 which had been part-granted to the applicant.  Finally, with regard to part (c), the Council have indicated that no letter from late 2005 from the named company to the Planning Department was identified.

In sum, it is the Council-�s position that all reasonable steps have been taken to ascertain the whereabouts of records coming within the scope of the applicant-�s request and that no further relevant records exist or can be found. It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have.

It is also important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, we take the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.

The question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has. I find, therefore, that the Council was justified in refusing access to further records apart from those already identified as relevant to the review on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 15(2) -� records available for inspection

The Council refused access to records 29 and 30 (the specified Part 8 Planning Application files) on the basis of section 15(2)(a) of the FOI Act. This provision provides for the refusal of records that are available for inspection whether upon payment or free of charge or records copies of which are available for purchase or removal free of charge.

I accept the Council-�s submission that as planning files, the files in question are available for inspection by members of the public. Accordingly, I find that the Council was justified in refusing access to the files under section 15(2) of the FOI Act.

Section 31(1)(a) -� legally privileged information

The Council initially refused access to records 3 and 38 under section 31(1)(a). In its submissions to this Office the Council revised its position with regard to record 3 and argued that section 37(1) applied. The Council is now relying on section 31(1)(a) solely to refuse access to record 28. 

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Record 28 comprises a letter sent by an official in the Council-�s Road & Transportation Unit to its in-house law agent enclosing a map. It refers to previous correspondence from the Law Agent. In its submission to this Office, the Council said the record -�falls within the legal professional privilege and it consists of deliberations between vendor and purchaser-�s legal representative and also for the purpose of seeking legal advice-�.

It seems to me that the Council is essentially arguing that the record attracts legal advice privilege. While advice privilege attaches to communications between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, it does not apply to

records of communications for the purpose of obtaining and/or giving legal assistance. Having regard to the Council-�s description of the record, it seems to me that the purpose of the record was not to obtain or give legal advice but rather, was part of an exchange in respect of the purchase of land or property, i.e. the provision of legal assistance. I also consider it relevant to note that the map appended to the correspondence have already been released to the applicant as part of record 17. Having regard to the provisions of section 22(12)(b) of the Act, which provides that a decision to refuse a request is presumed not to have been justified unless the FOI can satisfy this Office that it was, I find that the Council was not justified in refusing access to the record under section 31(1)(a).

Section 37 -� personal information

The Council has refused access to parts of records 1, 2, 4, 6, 11, 12, 14, 23 and 27 on the basis of section 37. In addition, as set out above, the Council is now relying on section 37(1) to refuse access to record 3.

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 relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including -�-�(xiii) information relating to property (including the nature of the individual-�s title to any property)-�-�.

Having examined the information to which access has been refused in the records 1, 2, 4, 6, 11, 12, 14 and 23, I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies to the redacted information,apart fromthe address and contact number of a solicitor redacted from page two of record 12, and the name and address of the firm of solicitors redacted form record 27.

Record 3 contains details of the sale of property to the Council by a named company. The Council argued that as the definition of personal information includes information relating to the property of an individual, the record is exempt under section 37(1). I disagree. The document identifies a specific company as the vendor. As such, I find that section 37 does not apply to the records, apart from the signatures of the two signatories on page two and the name of the individual on the map on page five.

As section 37(1) is subject to the other provisions of the section, I must go on to consider the applicability of subsections (2) and (5) to the information to which I have found section 37(1) to apply. Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.  Section 37(5) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

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 a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), 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-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, 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 (-�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.

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.

Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no relevant public interest in granting access to the information to which I have found section 37(1) to apply that, on balance, outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.

I find, therefore, that the Council was justified, under section 37(1) of the Act, in redacting certain information from records 1, 2, 4, 6, 11, 12, 14, 23 and 27, apart from the information identified above to which I have found section 37(1) not to apply. I find that it was not justified in refusing access, under section 37(1), to record 3, apart from the information I have identified above. I direct the release of the information to which I have found section 37(1) not to apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision.

• I affirm its decision to refuse access, under section 15(1)(a) of the Act, to any other relevant records on the ground that no such further records exist or can be found.
• I affirm its decision to refuse access to records 29 and 30 pursuant to section 15(2)(a).
• I affirm its decision to refuse access, under section 37(1) of the Act, to information in records 1, 2, 4, 6, 11, 12, 14, 23 and 27,apart from

• the address and contact number of a solicitor redacted from page two of record 12, and
• the name and address of the firm of solicitors redacted form record 27.

I direct the release of that information.

• I annul its decision to refuse access, under section 37(1), to record 3, with the exception of the individual name on the map appended to the record and the signatures on page 2, and direct that this record, redacted as appropriate, be released to the applicant.
• Finally, I annul the Council-�s decision to refuse access to record 28 on the basis of section 31(1)(a) and direct that this record be released to the applicant. 

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