Whether the Council was justified in refusing access, under various provisions of the FOI Act, to records relating to two properties

20 January 2022

Background

The two requests for records to which this decision relates have their background in a decision by the Council in 2018 to acquire a property (property A) by compulsory purchase order under the Derelict Sites Act 1990. The applicant resides in a property (property B) adjacent to property A. The Council has indicated that while there has been considerable engagement in relation to property A, neither the compensation monies nor the derelict site levies have been finalised as the title of the property has not been properly established. 

In a request dated 8 October 2020, the applicant sought access to records relating to property A and property B from 1 October 2019 to the date of her request. That request was processed by the Council under case reference FOI 8006-20.

As records relevant to the applicant’s request were held by two separate departments, the Council issued two decisions. Based on my review of the casefile it would appear that 49 records were identified as falling within the scope of the request. A total of 44 records were identified within the Chief Executive’s office, all of which were released in full to the applicant. In addition, five records were identified within the Housing and Community, Housing Development Section and four were released in full to the applicant.  One record (record 49) was part-released with some information in the record redacted under section 37(1) of the Act (third-party personal information). 

On 13 November 2020, the applicant sought an internal review of that decision. Among other things, she noted that she had received no information in relation to the schedule of works for property A. On 3 December 2020, the Council affirmed its original decision on the ground that all available records were released. 

Separately, in a request dated 15 March 2021, the applicant sought access to records relating to any requests or claims for compensation for property A received between 1 October 2017 to the date of her request, including, but not exclusively, records held by the Law Department.  This request was processed by the Council under case reference FOI 8308-21.

On 9 April 2021, the Council issued its decision. A total of 25 records were identified as falling within the scope of the applicant’s request. Three records were released in full while access to the remaining 22 records was refused under section 31(1)(a) (legal professional privilege). On 14 April 2021, the applicant sought an internal review of that decision, wherein she sought clarification of a number of maters arising from the records released. On 6 May 2021, the Council varied its original decision, by releasing one additional record to which access had originally been refused. 

By letter dated 10 May 2021, the applicant sought a review by this Office of the Council’s decisions on both requests, wherein she argued that she had not received all relevant records. The review in respect of the request of 8 October 2020 was processed under reference OIC-107529. The review in respect of the request dated 15 March 2021 was processed under reference OIC-107530.

I have now completed my reviews in accordance with section 22(2) of the FOI Act.  In carrying out my reviews, I have had regard to the correspondence between the applicant and the Council as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records concerned. Given the clear overlap between the two cases I have decided to issue a formal, binding decision covering both cases.

Scope of the Review

The Council’s position is that it has released all relevant records coming within the scope of the applicant’s requests apart from the specific records to which access was refused on the ground that they are exempt from release. This is, in essence, a refusal of any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Furthermore, in the course of its submission to this Office, the Council indicated that it was no longer seeking to rely on section 37 to refuse access to much of the information contained in record 49 in case reference FOI 8006-20, as many of the emails contained in that record were already in the applicant’s possession. However, it indicated that it was maintaining its reliance on section 37 with regard to the third party details contained in the final email chain dated 29 and 30 June 2020 in this record. The remainder of record 49 is therefore outside the scope of this review on the basis that the Council has not claimed it to be exempt. If the Council has not already released the redacted record, it should do so without further delay.

In addition, the Council indicated that with regard to case reference FOI 8308-21, it was no longer seeking to rely on section 31(1)(a) to refuse access to record 16 and that it was prepared to release that record to the applicant. As such, that record is no longer within the scope of this review. Again, if the Council has not already released the record, it should do so without further delay.

Finally, with regard to record 15 in case reference FOI 8308-21, the Council indicated that it was no longer of the view that section 31(1)(a) applied to the record and instead it was relying on section 36(1)(b) to refuse access to the record.

The scope of this review is therefore concerned with whether the Council was justified in refusing access, under various sections of the FOI Act, to third party details contained in the final email chain in record 49 in case reference FOI 8006-20, to records 1 to 15, 17, 19, 21, 22, and 24 in case reference FOI 8308-21, and to any other records apart from those already identified during the processing of the request on the ground that no further relevant records exist or can be found.

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.

Finally, it is important to note that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of exemptions that were not initially relied upon by the Council during its processing of the applicant’s requests.

Analysis and Findings

Section 15(1)(a)

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.

In her correspondence with this Office, the applicant argued that further records relevant to her request exist and should have been released to her. She provided details of the types of records which she believed existed in relation to both her requests. 

During the course of the review, the Council provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it said that with regard to request reference FOI 8006/20, two separate searches were undertaken for records held by the Chief Executive’s Department and the Housing Department. In particular, the Council provided a list of the specific keyword searches it had conducted in both departments of the Council following receipt of the applicant’s request and details of the shared and private drives and email accounts of the relevant personnel that were searched.

With regard to request reference FOI 8308/21, the Council indicted as the request related solely to matters of compensation claims, searches were limited to the Law Department. It explained that the all emails/letters/records generated by the Law Department are retained on a specific case management system and that searches were run based on specific keyword searches, details of which were provided.

In response to a specific query from the applicant in relation to records relating to the request for legal searches on property B, the Council indicated that this request for a title search to be conducted came from the Housing Department to the Law Department and that record 25 (which was released to the applicant at the internal review stage) was an email dated 4 March 2020 containing the request for searches from the Housing Department. With regard to the applicant’s query regarding what was termed the Law Department’s ‘memo response’, the Council indicated that record 24 comprised this ‘memo response’ and access to this record was refused under section 31(1)(a).   

In addition, in the course of correspondence with this Office, the applicant highlighted the reference in an email contained in record 25 to comments by an official of the Vacant Housing Unit of the Council to the possible dangerous condition of her home.  The applicant argued that further detail should exist in relation to the information which led the official to form this view.  In response, the Council indicated that no further records exist relating to the possible dangerous condition of the applicant’s home.  It said it had consulted with the official concerned and he indicated that he had initially sought a search on the title of property B to establish its current ownership in order to ensure that the correct parties were appraised of matters which might affect potential refurbishment works to the boundaries of both properties such as shared walls, roof, chimney stack etc. The official further indicated that the clerical staff member who made the request to the Title & Search section of the Law Department misunderstood the official’s request and this misunderstanding was reflected in the email contained in record 25. The official concerned has indicated that he had not expressed any view as to the condition of property B. Finally, the Council indicated that the staff member had not placed a copy of the email on the file in the Community, Housing Development Section which is why it had not been identified as part of the identification of records in request reference FOI 8006/20.

Further, with regard to the applicant’s request for ‘the referenced file for [property A] which contain [sic] withheld information about my home and my family’, the Council indicated that it interpreted this as relating to point 1 of the Searcher’s notes (record 25).  It further indicated that the report being referred to dated back to 12 June 2017 and as such would be outside the scope of the applicant’s request.

In summary, it is the Council’s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant’s two requests had been identified. 

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. The question I must consider is whether the council has taken all reasonable steps to ascertain the whereabouts of relevant records. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, 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 31(1)(a)

The Council is relying on section 31(1)(a) to refuse access to records 1 to 14, 17, 19, 21, 22, and 24 in case reference FOI 8308-21. 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).

This Office accepts that advice privilege may attach to records that form part of a continuum of correspondence that results from the original request for advice.

In its submission to this Office, the Council argued that the records at issue attract legal advice privilege as they constitute the seeking or giving of advice in relation to the legal matters relating to the properties.

Records 1, 2, 22 and 24 comprise correspondence to/from the Council’s in-house legal advisers and other Council officials and relate to the seeking of, or provision of, legal advice. This Office accepts that, provided the ingredients of the relevant type of privilege (legal advice privilege or litigation privilege) are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue. I find, therefore, that the Council was justified under section 31(1)(a) in refusing access to these records.

Records 3 to 14, 17, 19 and 21 comprise correspondence between the Council’s legal representatives and solicitors representing third parties. The Council argued that these records comprise correspondences that are attempting to establish legal title of property A and that the applicant is not currently a party to those matters. Having examined the records, I do not accept that they can reasonably be described as confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and/or giving legal advice, nor do I consider that they form part of a continuum of correspondence that results from an original request for advice. As such I find that section 31(1)(a) does not apply to these records.  However, that is not the end of the matter as it seems to me that the applicability of section 37, which provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of third party personal information, must be considered. I will consider that provision separately below.

Section 37

As I have indicated above, I deem it appropriate to consider the applicability of section 37 to records 3 to 14, 17, 19 and 21. Furthermore, while the Council has cited section 36 in support of its refusal of record 15 in case reference FOI 8308-21, I consider section 37 to be of more relevance. In addition, as set out above, with regard to record 49 in case reference FOI 8006-20, the Council is no longer relying on section 37 to refuse access to the majority of the record as the applicant was in receipt of many of the emails contained therein. However, it is maintaining its reliance on that section to refuse access to the third party details contained in the final email chain dated 29 and 30 June 2020 in that record. 

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 "(ii) information relating to the financial affairs of the individual’’, ‘‘(xi) information required for the purpose of assessing the liability of the individual in respect of a tax or duty or other payment owed or payable to the State or to a local authority, the Health Service Executive or other FOI body, or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment’’ and ‘‘(xiii) information relating to property (including the nature of the individual’s title to any property)’’.

As already indicated, records 3 to 14, 17, 19, and 21 comprise correspondence between staff of the Council’s Law Department and solicitors representing a third party in relation to the ownership of property A. Record 15 in case reference FOI 8308-21 also comprises correspondence between the Council and solicitors representing a third party relating to property A. I am satisfied that the release of these records would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies. With regard to record 49, I also accept that the information contained in the final email chain dated 29 and 30 June 2020 in record 49 is third party personal information and that section 37(1) applies.

Section 37(2) of the FOI Act 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.

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 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), 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 examined the records at issue, and having regard to the fact 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, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find, therefore, that the Council was justified, under section 37(1) of the Act, in refusing access to records 3 to 15, 17, 19, and 21 in case reference FOI 8308-21, and in refusing access to information contained in the final email chain in record 49 in case reference FOI 8006-20.

Having found that record 15 in case reference FOI 8308-21 is exempt under section 37(1), I see no need to examine the Council’s claim for exemption under section 36.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under sections 31(1)(a) and 37(1) of the Act, to records 1 to 15, 17, 19, 21, 22, and 24 in case reference FOI 8308-21, to redact certain information from record 49 in case reference FOI 8006-20, and to refuse access, under section 15(1)(a), to any other relevant records on the ground that no such records exist or can be found.

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