Whether the EPA was justified in refusing access to records relating to the applicants, records relating to farmland owned by the applicants in Macroom, Co. Cork and records relating to a tree felling licence granted with respect to the land under a number of provisions of the FOI Act, and in refusing access to any further records on the basis that they did not exist or could not be found 

21 March 2023

Background

On 22 October 2020 the applicants submitted a broad request to the EPA for records relating to themselves and relating to a specific piece of land owned by the applicants in Co. Cork. They also sought records relating to a tree-felling licence which had been granted with respect to the land. It would appear from the records what while a tree-felling licence was granted with respect to the land, it was subsequently revoked by the Forestry Service and a replanting order was issued. In addition, it also appears that there was a complaint made to the EPA by a third party in relation to the lands in question.

On 6 November 2020, the EPA wrote to the applicants wherein it informed them that it deemed the request to be invalid as it was very broad and it said it would have to consider refusing the request under section 15(1)(b) and/or section 15(1)(c) of the Act. It asked them to narrow the scope of the request by providing a specific time-frame and/or limiting the information requested.

On 23 November 2020, the applicants submitted a revised request whereby they specified that their request for records related to the period from 23 May 2020 until the date of their request.  However, with regard to their request for -�the EPA notification and screening reports-� the applicants sought records dating from 1 December 2018 until the date of their request. 

On 22 January 2021, the EPA informed the applicants that their request would be deemed refused as it was unable to make a decision within -�the extended timeframe-� due to the volume of records requested. On 13 February 2021, the applicants sought an internal review of the deemed refusal of the request.

On 15 March 2021, the EPA issued its internal review decision wherein it said it had decided to part-grant the request. A total of 136 records were identified as falling within the scope of the request. Of these;

• 90 records were released in full (Table 1)
• 15 records were part-granted, with some third party information redacted under section 37 of the Act (Table 2)
• One record was part-granted with some information redacted under section 37 and some redacted on the ground that it fell outside of the scope of the request (Table 3)
• Five records were part-granted with some information redacted on the ground that it fell outside of the scope of the request (Table 4)
• Nine records were refused under section 31(1)(a) of the Act (Table 5). 
• Two records were part-granted with some information redacted under section 31(1)(a) (Table 6).
• Four records were part-granted with certain information redacted under section 29 of the Act (Table 7)
• Three records were part-granted with certain information redacted under section 36 of the Act (Tables 8 and 9)
• Four records were part-granted with certain information redacted under sections 29, 36, and 37 (Table 10)

On 9 September 2021 the applicants sought a review by this Office of the EPA-�s decision. They argued that too much information had been redacted and that certain information from other bodies that were involved appeared to be missing. 

In its submissions to this Office during the review, the EPA argued that the release of certain information in the records would affect the interests of certain third parties, namely a company that provided legal services and a company that provided specialist ecological services.  The Investigator invited the two companies to make submissions in relation to the release of certain information relating to them to which the EPA had argued was exempt under section 36 of the Act. Both parties made submissions on the matter.

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 the applicants-� in their application for review and to the submissions made by the EPA in support of its decision.  I have also had regard to the contents of the records concerned and to the submissions of the third parties referred to above. I have decided to conclude this review by way of a formal, binding decision.  In referring to the information at issue, I have adopted the numbering system used by the EPA in the schedule of records it prepared when processing the request. 

Scope of Review

The EPA refused access to parts of the one record in Table 3 and parts of the five records in Table 4 on the basis that the information falls outside the scope of the request. Having examined the relevant records, I am satisfied that the information in question does, indeed, fall outside the scope of the request. As such, only those parts of the record in Table 3 that were withheld under section 37 remain within the scope of this review. As the only information redacted from the records in Table 4 was information that I accept to fall outside the scope of the request, I do not need to consider those records further. 

In addition, from my review of the records, while the EPA redacted Record 8 in Table 2 under section 37 of the Act, I am satisfied that the vast majority of the information redacted falls outside the scope of the request. The only information redacted from Record 8 that remains within the scope of this review, therefore, is the information redacted from column 3 relating to the applicants.

Moreover, during the course of the review, the EPA clarified its position with regard to a number of records as follows:

• With regard to Record 10 in Table 2, the EPA indicated that this record was released in full to the applicants. It said Records 11 and 12 in Table 2 are identical records but were titled differently in the schedule.
• The EPA also indicated that Records 8 and 9 in Table 5, which were refused under section 31(1)(a), contain as an attachment the tree felling licence granted with respect to the applicants-� land. It said as this licence was in the possession of the applicants it did not consider it necessary to provide this record as part of the applicants-� FOI request.  I accept the EPA-�s argument on this point.
• The EPA said the two records in Table 9 were refused under section 36(1)(b) and were not part-granted as indicated in the internal review decision. 
• The four records in Table 10 are extracts from a chain of correspondence between staff of the EPA and an external service provider with considerable overlap between the four records. In its submissions to this Office, the EPA has identified the specific parts of the records to which it considers sections 29, 36 and 37 of the Act to apply.

Finally, the EPA-�s position is that it has released all relevant records coming within the scope of the request. This is, in essence, a refusal to grant access to 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.

This review is therefore concerned with whether the EPA was justified in refusing access, in whole or in part, to the relevant records under sections 29, 31(1)(a), 36(1)(b), and 37(1) of the FOI Act, and whether it was justified in refusing access, under section 15(1)(a) of the Act, 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 applicants, 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, subject to the Act, any reason that the requester gives for the request shall be disregarded in deciding whether to grant or refuse a request. This means that this Office cannot have regard to the applicants-� 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, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent.  Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

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.

During the course of the review, the EPA 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 applicants with those details, I do not propose to repeat them in full here. In summary, the EPA indicated that the Office of Environmental Enforcement (OEE), within the EPA, was the office responsible for enforcing and dealing with the Environmental Liability Directive (ELD) and as such they were the team examining the tree felling on the lands in question.  The EPA said that following receipt of the applicants-� request an email was sent to ELD staff seeking any information, in electronic or hard copy form, they held which was relevant to the request. It further said that staff were asked to search for both electronic and non-electronic records (including e-mails, spreadsheets) and for records held on formal files, temporary folders or in any other manner. It also said that staff carried out the searches electronically and by electronically searching in those electronic folders set up to store enforcement and legal information on this case. It said staff manually searched for any relevant hard copy files, but no relevant records were located. Finally, the EPA indicated that the ELD staff were also asked to indicate if any EPA staff may hold such records but it was determined that none did.

In summary, it is the EPA-�s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicants-� request have been identified.

In response to the above information, the applicants indicated they would have expected that there would be information in the relevant records relating to internal EPA discussions around the possibility of initiating litigation in relation to issues associated with the revocation of the felling licence. They also said they would have expected that there would be greater information in the records relating to correspondence between the EPA and the National Parks and Wildlife Service and provided examples of a number of records. The applicants further indicated that they considered that an attachment referred to in Record 7 in Table 2 should have been amongst the records identified as part of their request. 

The Investigator subsequently posed a number of specific questions to the EPA in relation to the matters raised by the applicants. When queried about the attachment in Record 7 in Table 2, the EPA indicated that they had checked again with the official concerned and she indicated that while she had retained the chain of emails, she had not retained the original email with the attachment and therefore that record was not held by the EPA. With regard to specific records queried by the applicants, the EPA indicated that a specific email between an official in the Department of Agriculture and an EPA official had already been scheduled as Record 3 in Table 2. With regard to an exchange of emails between an EPA official and an official in the NPWS entitled -�Old sessile oak woods assessment-�, the EPA indicated that all email exchanges between the relevant officials had been supplied. 

In sum, it is the EPA-�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 EPA 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. More particularly, with regard to the internal NPWS correspondence which the applicants considered should have been identified, it is not unreasonable, in my view, that the EPA, a separate statutory body, may not be in possession of such correspondence. I also accept the EPA-�s position with regard to the attachment in Record 7 in Table 2. In addition, I consider that what the applicants refer to as internal EPA considerations in relation to the possibility of litigation can be said to relate to certain information which has been refused on the basis of section 29. 

I find, therefore, that the EPA 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 29 -� Deliberative processes

The EPA redacted certain information from Records 1 to 4 in Table 7 under section 29.  The EPA is also relying on that section to refuse access to parts of Records 1 to 4 in Table 10. 

Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. 

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the -�deliberative processes-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

I should explain that under section 25(3) of the Act, I am required to take all reasonable precautions to prevent the disclosure of information contained in an exempt record. As such, while I am required to give reasons for my decision, I consider that the extent to which I can describe the EPA-�s arguments is somewhat limited.

Nevertheless, I believe I am not in breach of section 25(3) by disclosing that the EPA said it is still considering what, if any, action it will take under the European Communities (Environmental Liability) Regulations 2008 (S.I. No. 547/2008) in relation to a complaint made to it by a private entity in relation to the tree-felling carried out at the land in question. As it considers it to be an active case, the EPA argued that release of the information would be contrary to the public interest. It said part of its consideration relates to the possible actions of other public bodies and it argued that if the applicants were to be made aware of its deliberations, this could weaken the actions currently being pursued by such bodies.

Having carefully considered the matter, I am satisfied that the process for considering whether to take action under the relevant Regulations can reasonably be described as a deliberative process for the purposes of the FOI Act. I am satisfied that decisions to initiate such action require the balancing of competing interests and as such require the necessary space in order for the EPA to make informed decisions. I am satisfied that in order to protect the integrity of the process it is not in the public interest to release the relevant records at this point in time. I am equally satisfied that there is a strong public interest in ensuring that this process is not compromised by the release of records that could inhibit the full and frank consideration of all relevant issues by the EPA.

Bearing in mind the provisions of section 18 as outlined above, I find, therefore, that section 29(1) applies to the information to which access has been refused in Records 1 to 4 in Table 7 and to the information to which access has been refused in Records 1 to 4 in Table 10.

I have also considered whether any of the exceptions to section 29(1) as set out in section 29(2) apply to the information. Section 29(2) provides that section 29(1) does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. I am satisfied that none of these exceptions apply to the information. 

In summary, therefore, I find that the EPA was justified in redacting certain information from Records 1 to 4 in Table 7 and Records 1 to 4 in Table 10 under section 29(1) of the Act. 

Section 31(1)(a)

The EPA refused access to the nine records in Table 5 and redacted certain information from the two records in Table 6 under section 31(1)(a). That section 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 EPA 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 property. Having examined the records, and bearing in mind the provisions of section 18, I am satisfied that the nine records in Table 5 comprise correspondence between the EPA and its legal advisers and that section 31(1)(a) applies. I am also satisfied that the information that has been redacted from the two records in Table 6 relates to correspondence between the EPA and its legal advisers and that section 31(1)(a) also applies to this information. I find therefore that the EPA was justified in refusing access to this information under section 31(1)(a).

Section 36 -� Commercially sensitive information

The EPA refused access to two records in Table 9 and redacted certain information from the one record in Table 8 under section 36(1)(b). It also sought to rely on that section to refuse access to parts of Records 1 to 4 in Table 10. 

Section 36(1)(b) provides for the mandatory refusal of a request where the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material financial loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice-� the competitive position of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of the exemption. However, we take the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case ofWestwood Club v The Information Commissioner[2014] IEHC 375 (the Westwood case), Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.

The EPA argued that the information to which access has been refused relates to the financial and commercial information of the EPA as well as the commercial information of three private companies. More particularly, the EPA argued that the relevant information relates to fees quoted and associated financial details in relation to one contractor as well as fees charged by another contractor. It further argued that access has also been refused to information relating to a contractor who was not awarded a contract. It argued that release of sensitive commercial and financial information relating to private companies could be utilised by competitors of these companies to submit lower quotes to the EPA for future work and thereby negatively impacting the commercial position of these companies. 

In addition, the EPA argued that financial information relating to the Office of Environmental Enforcement (OEE), a division within the EPA, was also refused on the basis of section 36. It argued that this information related to its overall team budget as well as information relating to expenditure on certain contracts, including details of who quoted for a specific contract, and was commercially sensitive information. In addition, it argued that the release of information relating to the OEE-�s budget could negatively impact the EPA-�s financial position as potential contractors could tailor their quotes for particular work in a manner which might disadvantage the Authority.

As I have outlined above, this Office contacted two relevant third parties and provided them with an opportunity to make submissions in this matter. In response, both parties, a legal services firm and a firm providing ecological consultancy services, indicated that they objected to the release of information relating to them in the relevant records on the grounds that the information was commercially sensitive. In particular, both parties indicated that information relating to proposed fees for work to be undertaken, if released, could reasonably be expected to result in material financial loss as it could be used to their detriment by their competitors. In one case, the third party indicated that their area of work was particularly specialised and the release of their fee structure would prejudice their competitive position in such a specialised field. In addition, one third party argued that if sensitive information relating to pricing were to be released, it would provide their competitors with an unfair insight into their pricing and approach to costs which could provide them with a competitive advantage in future public procurement competitions.

Record 1 of Table 8 to which access has been part-granted comprises correspondence with the ecological consultancy firm as well as subsequent internal correspondence between EPA staff. The two records in Table 9 to which access was refused comprise correspondence with one of the third parties concerning the provision of legal services. As set out above, the four records in Table 10 that have certain information redacted under section 36 are extracts from a chain of correspondence between staff of the EPA and the ecological consultancy firm, with considerable overlap between the four records.

Having examined the contents of the records and considered the parties-� submissions, I am satisfied that the detailed pricing information and unit prices that are contained in the records are such that release of the information could prejudice competitive position of these companies who could use it to their advantage.  I accept that the release of information such as detailed invoices and associated correspondence could give some insight into the contractors pricing strategies and margins that could be used by competitors in future negotiations or tender competitions.  I find therefore, that section 36(1)(b) applies to the following information:

• Record 1 in Table 8 -� the expected quote referred to in the fifth email in the chain of correspondence and the substantive part of the sixth email
• All of Record 1 in Table 9
• All of Record 2 in Table 9 with the exception of the first email in the record 
• All those parts of Record 1 in Table 10 which have been refused on the basis of section 36, with the exception of the information in the email at 13:28 on 16 October 2019 on the bottom of page 3
• All those parts of Record 2 in Table 10 which have been refused on the basis of section 36
• All those parts of Record 3 in Table 10 which have been refused on the basis of section 36
• All those parts of Record 4 in Table 10 which have been refused on the basis of section 36

However, with the exception of the above, I am not satisfied that release of the remaining information in the records for which section 36 has been relied upon can reasonably be expected to result in material financial loss or prejudice the competitive position of an entity.  In particular, with regard to the information relating to the commercial and financial position of the EPA, I am not satisfied that release of this information could result in commercial damage to the EPA. In particular, given the passage of time, I am not satisfied that disclosing information relating to the budgetary outrun of the OEE in 2019 could result in commercial damage to the interests of the EPA. Having regard to the content of the information I am not satisfied that release of the information to the world at large of such information could reasonably be expected to prejudice its competitive position.

I find therefore, that, with the exception of the information which I have outlined above, section 36(1)(b) does not apply to any further information in the records.

However, that is not the end of the matter as section 36(1) is subject to section 36(2). That section provides for the granting of a request to which section 36(1) applies in certain circumstances. I am satisfied that none of the circumstances in question arise in this case. I must also consider whether, on balance, the public interest would be better served by granting than by refusing access to the information to which I have found section 36(1) to apply (section 36(3) refers).

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe 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. It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law.

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 inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5. In her judgment, 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.

In the most recent Supreme Court judgment mentioned above, the Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that -�-� the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.-�

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. However, this Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, that it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny

Having examined the information at issue, I have not been able to identify a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case in circumstances where I accept that the disclosure of the information could prejudice the competitive position of the relevant third parties. Accordingly, I consider that the public interest would not be better served by its release.

I find, therefore, that the EPA was justified in refusing access to the information to which IO have found section 36(1)(b) to apply as described above.

Section 37

The EPA refused access to parts of Records 1 to 9 and 12 to 15 in Table 2 as well as parts of the one record in Table 3 under section 37. The EPA is also relying on that section to refuse access to parts of Records 1 to 4 in Table 10. 

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 -�-�(i) information relating to the educational, medical, psychiatric or psychological history of the individual-�-�.

Having examined the information to which access has been refused in the relevant records in Tables 2 and 10, I am satisfied that the release of the information would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies. More particularly, the information to which access has been refused includes the names of complainants to the EPA, staff mobile phone numbers and details of educational qualifications. I find, therefore, that section 37(1) applies to the withheld information in Records 1 to 9 and 12 to 15 in Table 2. I also find that section 37(1) applies to those parts of Records 1 to 4 in Table 10 which have been refused on this basis. 

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. As I have outlined above, the Supreme Court has 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.

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 EPA was justified in refusing access, under section 37(1) of the Act, to parts of Records 1 to 9 and 12 to 15 in Table 2, parts of the one record in Table 3, and parts of Records 1 to 4 in Table 10. 

Decision

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

I affirm its decision to refuse access to information in the relevant records on the basis of sections 29, 31(1)(a), 36(1)(b) and 37(1), with the exception of the following:

• The information which had been refused in Record 1 of Table 8 with the exception of the expected quote referred to in the fifth email in the chain of correspondence and the substantive part of the sixth email
• The first email in Record 2 of Table 9
• The information contained in an email set at 13:28 on 16 October 2019 (contained on the bottom of page 3) in Record 1 of Table 10

I direct that the above information be released to the applicants. 

I also affirm its decision to refuse access to any further relevant records on the basis that no further relevant 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 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