Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to additional records coming within the scope of the applicant-�s requests, on the basis that they do not exist or cannot be found after all reasonable steps have been taken to locate them, and whether it was justified in refusing access to certain records under sections 31(1)(a), 35(1)(a), 37 and 42(m)(i) of the FOI Act

9 June 2023

Background

This decision is a composite decision relating to two requests the applicant made to the Council. The applicant-�s FOI requests were made against the backdrop of alleged unauthorised development works at a particular site.

The first request (OIC Case OIC-135115-W0S7L4 refers) was dated 20 June 2022 and sought copies of -�all forms of communications, to include telephone calls, WhatsApp, email, letter, reports, of and with staff, contractors, and [Transport Infrastructure Ireland] etc-� relating to a specific Enforcement File [X] concerning the alleged unauthorised opening of a new shared entrance onto a particular road and the widening of an existing entrance onto the same road. The applicant said that the request was also to include instructions to -�other members of staff-� from -�June 2016 to May 2019 and from May 2019 to date-�.

On 30 June 2022, the Council part granted the applicant-�s request, subject to the refusal of certain records under sections 31(1)(a), 35(1)(a) and 42(m) of the FOI Act. Following a request for an internal review, on 29 August 2022 the Council affirmed its original decision. It also informed the applicant that an incomplete schedule of records had accompanied its original decision and provided her with a copy of what it described as a -�complete schedule of records relating to the records considered under the original Freedom of Information File-�. For ease of reference, I will use the numbering scheme set out in the second records schedule provided by the Council. One of the records withheld (record 87) was described on the records schedule as a -�[l]etter of observation relating to planning application [Y]-� noted as having been sent by a complainant to the Council. Access to this record was refused under sections 35 and 42 of the FOI Act.

On 30 August 2022, the applicant made a new request to the Council for -�a copy of the letter of observation to planning application [Y]-�. OIC Case OIC-135110-R4B1Q7 refers. She was of the view that the record should be -�freely available to the general public-�. She also appeared to be of the view that, among other things, the record concerned should be available to her as the original planning applicant/developer. She suggested that the Planning Department would be the -�most appropriate department-� within the Council to locate the record.

In a decision dated 1 September 2022, the Council refused the applicant-�s second request under section 15(1)(a) of the FOI Act on the ground that the record sought did not exist. Following a request for an internal review, on 16 September 2022, the Council affirmed its original decision. It stated that the observation letter -�did not form part of the records for planning file [Y], as that file had been deemed invalid some considerable time before the letter of observation was received-� by the Council. Despite refusing her request on the basis that the record did not exist, the Council enclosed a copy of the letter, which it said was held on Enforcement File [X], rather than planning file [Y], with certain information withheld under section 42(m) of the FOI Act. During the course of this review, the Council confirmed to this Office that the record sought in Case 135110 was the same record listed as record 87 in the records schedule provided in Case 135115.

On 3 February 2023, the applicant applied to this Office for a review of the Council-�s decisions on both requests.

I have now completed my review in both cases in accordance with section 22(2) of the FOI Act. Having regard to the overlapping nature of the two requests, I have decided to conclude the reviews by way of a formal, binding composite decision. In carrying out my reviews, I have had regard to the applicant-�s comments in her applications for review and to the submissions made by the Council in support of its decisions. I have also had regard to the contents of the records concerned.

Scope of Review

The Council identified 142 records relating to the applicant-�s initial request. It released 130 records and refused access to the remaining records as follows:

• record 86 (section 15(1)(d))
• records 49-52, 59, 64, 66-67, 70 and 75 (section 31(1)(a))
• record 87 (sections 35(1)(a) and 42(m)(i))

It refused access to the letter of observation in the second case (record 87) under sections 15(1)(a) and 42(m)(i).

The applicant believes that additional records relating to her initial request should exist. The Council-�s position is that no further relevant records exist or can be located. This is, essentially, a refusal to release additional records relating to her request under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

I note that the Council referred in correspondence with this Office to its release of record 87 in part at internal review stage as release -�outside of FOI-�. However, I also note that it withheld access to information from record 87 on the basis of section 42 of the FOI Act. I am satisfied that the release of the record concerned in part by the Council was a decision made under the FOI Act which is, accordingly, subject to review by this Office.

During the course of this review, this Office asked the Council to clarify its position in relation to record 87. On foot of that, this Office contacted the individual who provided the letter contained in record 87 to the Council. He has confirmed to this Office that he has no objection to the release of the record concerned. Having regard to the content of the remainder of record 87, other than the letter provided to the Council, I consider that section 37 is relevant, and will consider its application as part of my review.

Having regard to the above, this review is concerned solely with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to a copy of the letter of observation and additional records coming within the scope of the applicant-�s request, on the basis that they do not exist or cannot be found after all reasonable steps have been taken to locate them; and whether it was justified in its decision to refuse access to certain records under sections 31(1)(a), 35(1)(a), 37 and 42(m) of the FOI Act.

Preliminary Matters                                                                        

Before I address the substantive issues arising in this case, I wish to make the following preliminary comments.

Firstly, in her application to this Office for a review of the Council-�s decision in Case 135115, I note that the applicant posed a number of questions on foot of the content of a number of the records which were released to her. Generally speaking, requests for information and/or asking questions relating to the content of records released or withheld under FOI are not viewed as valid FOI requests.

I also note that the applicant referred to the Council-�s legal advice resulting in the issuance of letters to her by a senior member [of the Council] -�that were flawed and forced [her] into [making] a planning application -�.-�. It is important to note that 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.

In her correspondence with this Office, I further note that the applicant set out some of the background as to why she was seeking the records at issue. Section 13(4) of the FOI 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 information 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 FOI Act requires a consideration of the public interest.

It is important to note that while the FOI Act provides for members of the public to obtain access, to the greatest extent possible, to information held by public bodies, this must be consistent with the public interest and the right to privacy. Accordingly, the right of access is not absolute, and section 11(7) of the FOI Act provides that the right of access does not apply to an exempt record, including when the exemption is mandatory.

Finally, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of some of the records at issue is limited.

Analysis and Findings

Section 15(1)(d) -� record 86

Section 15(1)(d) provides that an FOI body may refuse to grant a request if the information requested is already in the public domain.

In relation to the first request, the Council refused access to record 86 under section 15(1)(d) of the FOI Act, which comprises a letter dated 12 June 2020 addressed to the applicant. This record is accessible via a planning application search on the Council-�s websitewww.corkcoco.ie. In the circumstances, I am satisfied that record 86 is already in the public domain and that section 15(1)(d) applies. 

Section 31(1)(a) -� records 49, 50, 51, 52, 59, 64, 66, 67, 70 and 75

The Council refused access to records 49, 50, 51, 52, 59, 64, 66, 67, 70 and 75 under section 31(1)(a) of the FOI Act.

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

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).

Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

Essentially, the Council-�s position is that the emails at issue were sent between the Enforcement Section and the Council-�s Senior Executive Solicitor for the purpose of seeking legal advice in relation to potentially taking the matter of an alleged unauthorised development to Court. It said that the Solicitor in question specifically stated on all of her correspondence that it -�is a lawyer-client communication and constitutes legal advice-�.

While I do not accept that a standard statement on such correspondence is necessarily determinative of whether it is subject to legal privilege, I have carefully examined the records concerned. Record 49 comprises an email from a solicitor acting in a legal capacity and an attachment which contains a letter of advice dated 31 March 2020. Records 50, 51/52, 64 and 66/67 also include a copy of the letter dated 31 March 2020. The records also include an email chain between Council staff (records 51/52), a file memo of a phone call between the applicant and the Solicitor acting for the Council containing various observations from the Solicitor concerned, which she provided to the Enforcement Section of the Planning Department (records 59 and 64) and an email from the Solicitor to Council staff (record 64).

I am satisfied that the letter dated 31 March 2020 reveals confidential communications made between the Enforcement Section and the Council-�s Senior Executive Solicitor for the purpose of obtaining and/or giving legal advice and that section 31(1)(a) applies. I am also satisfied that the records set out above contain confidential communications and/or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice.

I note that records 66/67, 70 and 75 include copies of emails between staff members and the applicant. I accept that it may not always be the case that correspondence with the applicant could be considered as forming part of a continuum of correspondence that resulted from the original provision of legal advice. However, I am satisfied in the circumstances of this case, that the correspondence arose after the matter had been referred to the County Solicitor and that it is included in the records in the context of referring the email thread to the Council-�s legal representative in order to keep her informed so that advice may be sought. In any event, I note that the correspondence has been released to the applicant in records 68/69.

Accordingly, I am satisfied that the records concerned comprise confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and giving legal advice, or form part of a continuum of correspondence resulting from the original request for advice. Accordingly, I find that section 31(1)(a) applies to records 49, 50, 51, 52, 59, 64, 66, 67, 70 and 75 and that the Council was justified in refusing access to these records on the basis of section 31(1)(a) of the FOI Act.

Section 15(1)(a) -� Whether additional records exist

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. Our role in a case such as this 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. I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.

The Parties-� Submissions

Essentially, the Council-�s position is that the applicant sought access to all records held on Enforcement File [X], that the file is held in hard copy only and that the entirety of the file has been considered for release.

The general thrust of the applicant-�s argument is that further records relating to Enforcement File [X] should exist, including records of communications between relevant individuals including staff, contractors and so forth. In relation to the matters raised by the applicant in her correspondence with this Office, the Council responded as follows:

The applicant was of the view that more information would have been necessary for the release of the warning letter sent to her by the Council. She queried the absence of a record of the representation -�alleging that unauthorised development (may have/is being/may be) carried out-�. In response, the Council stated that the local engineer made a request to open a file on the development concerned as he was of the view that it was not in accordance with the relevant planning permission. It said that in such circumstances a warning letter merely advises that there has been an allegation of unauthorised development and that inspections would follow to determine if the allegation was correct. Essentially, the Council-�s position is that it would not expect any other records to exist on the relevant Enforcement File relating to this aspect of the case.

The applicant was of the view that record 39 record had not been released in full and that an email referred to in record 84 had not been provided. The Council clarified that the entire record had been released as record 35 and that the email was considered separately as record 93.

The applicant stated that record 39 mentioned that other individuals should be consulted, but that no records of such consultations had been released. In response, the Council stated that consultation in this context would essentially mean -�to be consulted/referred to for input-�. It stated that this did not necessarily mean that consultation meetings would be held.

In relation to a query whether previous versions of the Enforcement Report Sheet (Record 42) existed, the Council stated that the employee who created the report was no longer employed by the Council and could not be asked whether other draft versions existed.

The Council stated that it did not create records of conversations between staff and essentially, would not expect any such records to be held on the Enforcement File concerned. The Council was also asked to clarify why the email trail in record 122 appeared not to have been released in full to the applicant. However, it did not address this in its response to this Office.

During the course of the reviews, the Investigating Officer asked the Council to provide details of the searches that were conducted and the locations searched. She also asked the Council to outline the files examined in each instance. She further queried whether all relevant individuals were consulted and their records searched at the time of processing the request. In response, the Council stated that the -�planning enforcement file is the entire record-� and that this Office-�s query regarding searches of relevant individuals-� records was not applicable to the case.

The Council stated that it "does not have an electronic file management system for storing records relating to enforcement files-� but that -�every email, report and letter is placed on the file". It took the view that -�the context of the request is Enforcement File [X]-� and said that the request was responded to in that context. The Council stated that the applicant had made a number of planning applications and had made -�multiple contact with numerous individuals throughout the Council-� in relation to the particular planning matter. It also stated that the applicant made other FOI requests (including 18 separate requests in 2022), to other parts of the Council -�in relation to this same issue-�.  Essentially, the Council-�s position is that not all of these contacts or associated records would relate to the enforcement file, and accordingly would not be held on the particular file, which was the subject of her request. It was of the view that the Investigating Officer-�s queries would -�broaden the scope of the request and records for consideration very much outside of what the applicant sought-�.

Following receipt of the Council-�s submissions, the Investigating Officer spoke to the applicant and notified her of additional information which the Council has provided in its submissions to this Office in relation to searches carried out to locate the records requested. During the course of that telephone call, the applicant referred to email records relating to the enforcement matter that she believes exist but did not form part of Enforcement File [X]. Specifically, she queried whether the Council had searched the email accounts of staff members to ensure that all relevant records were identified.

Analysis

As outlined above, this Office requested details of the searches conducted by the Council to locate relevant records. As also noted above, the Council did not provide a substantive response. I also note the Council-�s submission that the applicant had made -�multiple contact with numerous individuals throughout the Council-� in relation to the particular planning matter. It seems to me, having reviewed the applicant-�s request and additional comments and the Council-�s submissions, that there may well be additional records that relate to the enforcement matter that are not held on Enforcement File [X].

It also appears that the Council took the view that the applicant solely sought access to a copy of all records held on Enforcement File [X]. There is no evidence before me that the Council carried out any searches for records relating to the Enforcement File which may be held elsewhere.

In my view, the Council took an unduly narrow interpretation of the scope of the applicant-�s request in circumstances where the applicant specifically sought communications-�in respect of-�Enforcement File [X] including-�all forms of communications-�and-�instructions to other members of staff-�(my emphasis).

In the circumstances of this case, the Council has not satisfied me that it has taken all reasonable steps to ascertain the whereabouts of relevant records within the scope of the applicant-�s request.

In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul this aspect of the Council-�s decision, the effect of which is that the Council must consider the applicant-�s request in case 135115 afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. Before doing so, the Council may find it useful to engage further with the applicant to clarify the precise nature of the records she believes exist. 

Record 87/Letter of observation

As noted above, the Schedule of Records provided by the Council at internal review stage in its decision on the first request identified record 87 as a -�letter of observation-�. The applicant-�s second request was for access to this letter of observation. Having carefully examined the record provided to this Office for the purposes of the review, I can confirm that record 87 comprises an email thread between a third party and the Council, enclosing the letter and attachments from the third party in relation to the applicant-�s planning application. The Council refused access to this record in the first case under sections 35 and 42 of the FOI Act. This prompted the applicant to make a second request for access to this particular record. In its original and internal review decisions on the second request, the Council purported to refuse access to record 87 under section 15(1)(a) of the FOI Act. Regardless, as also noted above, it released the record with certain information redacted under section 42(m) of the FOI Act as part of its internal review decision.

Submissions by the Applicant

In her application to this Office, the applicant queried how it was possible for the Council to find that a letter of observation, which it refused in the first request under sections 35 and 42 of the FOI Act (record 87 on the Schedule), could be refused on the basis that it did not exist in response to her second request, yet be partly released to her in the same decision.

Submissions by the Council

The Council-�s position, essentially, was that while the record was listed on the records schedule as a letter of observation, which would be held on a planning file, that the planning application concerned was deemed to be invalid and had been closed prior to the submission of the letter concerned. Accordingly, the Council took the view that the letter comprised an allegation of unauthorised development, which would be held on an enforcement file. The Council appears to be arguing that the reference in the applicant-�s second request to the planning department meant that she sought a record held on the planning file. It also appears that as the record concerned was held on the relevant enforcement file, that the Council decided to refuse access to the record on the basis that it -�did not exist-� on the planning file referenced in her request, and that accordingly, section 15(1)(a) applied. As noted above, in its submissions to this Office the Council indicated that it considered its release of the letter in part to have been done -�outside of the FOI Act-�.

Under section 12(1) of the FOI Act, an FOI request must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps. It is evident from the Schedule of Records provided to the applicant in relation to the first request that a letter was submitted to the Council in relation to the applicant-�s planning application. The applicant subsequently sought -�a copy of the letter of observation relating to Planning Application [Y]-� and suggested that the planning department was the -�most appropriate department-� within the Council to locate the record. It seems to me that the applicant clearly sought a copy of the particular record identified by the Council on the records schedule provided. Regardless of where the applicant thought the record might be held, it is evident from the Council-�s release of the record in part at internal review stage that it understood exactly which record the applicant sought in her second request, even though it continued to rely on section 15(1)(a).

It is important to note that the FOI Act requires an FOI body to give reasonable assistance to a person who is seeking a record under the FOI Act in relation to the making of the FOI request for access to the record. Accordingly, while I accept the Council-�s explanation as to why the record is not held on planning file [Y], or presumably in its planning department, I do not accept that the applicant limited the scope of her request to the planning department. In the circumstances, I find that the Council was not justified in refusing access to the record at issue under section 15(1)(a) on the ground that the record sought does not exist.

However, as the Council released this record in part in response to the applicant-�s second request, the matter of its refusal under section 15(1)(a) is moot. What remains to be considered is the Council-�s decision to refuse access to the remaining parts of record 87, which I will consider below.

Section 42

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, in order 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.

In the circumstances of this case, the second requirement is of most relevance, so I shall consider it in the first instance.

The second requirement is that information must have been provided in confidence. The Council argued that the letter and attachments formed a complaint rather than an observation on a planning application, and its position was that complaints were dealt with confidentially.  It stated that the Complaint Form, available on its website informs potential complainants that their personal information submitted by them and their identity -�will be held in confidence-�.

During the course of this review, the Investigating Officer spoke to an official from the Council-�s Planning section, who confirmed that the letter concerned was initially received by post, accompanied by a €20 fee. I understand that fees must be attached to observations on planning applications but that complaints concerning unauthorised development are not subject to a fee. He said that the fee was returned as the planning application concerned had been deemed invalid. The official stated that as the observation referred to an unauthorised development, the third party was asked if he wished to make an enforcement complaint. I understand that he did not make a subsequent complaint. However, it appears at that point that the Council categorised the letter concerned as an enforcement complaint. Its position was that enforcement complaints are made in confidence, are treated as confidential and are not published or otherwise made available.

However, it seems to me that the matter at issue in this case is not whether complaints on enforcement files are submitted in confidence, but rather, whether the letter concerned was submitted in confidence, such that sections 35 or 42 might apply. 

The letter included in record 87 was dated 1 July 2020, a day before the final date for submitting observations on the planning application concerned. The first line of the letter (which was included in the information released to the applicant) stated that -�I wish to make the following observations in relation to planning application [Y]-�. As noted above, the author of the letter enclosed the relevant fee to accompany an observation on a planning application. The Council-�s own guidelines for making submissions/observations/objections on a planning application, which are available on its websitehere, state that -�[a]ll submissions/objections received by the Planning Authority will be made available for public inspection on the planning file & also online on Cork County Council-�s Planning Enquiry System & Planning Viewer App.-�

During the course of the review, the Investigating Officer contacted the third party who had submitted the record in question to put him on notice of the potential release of the record and invited his comments. The third party informed the Investigating Officer during a telephone call that he was aware when he submitted the observation to the Council that it would be publicly available on the planning file and that he had no objection to the record in question being released.

In circumstances where the Council-�s guidelines provide that observations will be made publicly available, the third party to whom the record relates has confirmed that he was aware of this when he submitted the observation, and that he consents to the release of the record, I am satisfied that the Council has not demonstrated that the information in the record was submitted in confidence, and that accordingly section 42 does not apply.

Accordingly, I find that the Council was not justified in refusing access to the remaining information withheld from release in record 87 on the basis of section 42(m)(i) of the FOI Act.

Section 35

Section 35(1)(a) provides for the protection of certain information given to an FOI body in confidence. For a record to be exempt under section 35(1)(a), four requirements must be satisfied, namely that:

• the information was given to an FOI body in confidence;
• the information was given on the understanding that it would be treated by the FOI body as confidential;
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and
• it is important to the body that such further similar information should continue to be given to the body.

As I have found above that record 87 was not submitted to the Council in confidence, I find that section 35(1)(a) does not apply and that the Council was not justified in refusing access to the record on this basis.

However, as noted above, I am of the view that section 37 is relevant to some of the information contained in the record, and I will consider its application below.

Section 37

Section 37(1) is a mandatory exemption, which 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 foregoing definition.

I have had careful regard to the content of record 87. I am satisfied that the email thread contains the personal email address and mobile phone telephone number of the third party concerned, neither of which are contained in the letter which he understood would be published. In the circumstances, I am satisfied that these contact details comprise the personal information of an individual other than the applicant and that section 37(1) applies to this information.

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 individual 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 individual 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[2020] IESC 57, 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.

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 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 FOI 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 information concerned 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 the third party-�s contact details contained in record 87. As I have found that it was not justified in refusing access to the remainder of the record, I direct its release to the applicant, subject to the redaction of the third party-�s email address and mobile telephone number.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decisions. I annul its decision in case 135115 to refuse, under section 15(1)(a) of the FOI Act, the request for further records falling within the scope of the applicant-�s request. I direct it to carry out a fresh decision-making process in respect of this aspect of the request. I also annul its decision to refuse, under section 15(1)(a), access to the letter of observation in case 135110. I annul its decision to refuse access to certain information from the letter of observation under sections 35(1)(a) and 42(m)(i) of the FOI Act and I direct it to release this record, with the exception of the third party-�s email address and telephone number. I find that it was justified in refusing access to record 86 under section 15(1)(d) of the FOI Act. Finally, I affirm the decision of the Council to refuse access to the remaining records at issue under section 31(1)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant 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.

Sandra Murdiff
Investigator