Whether the Council was justified in refusing access to additional records relating to plans providing for an underpass as part of the proposed N11/N25 Oylegate to Rosslare Harbour motorway under section 15(1)(a) of the FOI Act, and in refusing access to certain information contained in records released to the applicant under section 37 of the FOI Act

18 August 2023

Background

The applicant in this case resides in the vicinity of the proposed N11/N25 motorway route running from Oylegate to Rosslare Harbour. I understand that plans for the motorway include the provision of an underpass and that the applicant is of the view that changes were made to those plans during the Compulsory Purchase Order (CPO) process. In a request dated 23 November 2022, the applicant sought access to -�all records, whether in hard copy, digital or telephone format, dealing with plans, drawings, negotiations, approvals, correspondence, notes of meetings and the like-� relating to the provision of the underpass-�, how this amended previous plan(s) for the area, and the -�consideration given to how the height of the proposed embankment necessitated by the provision of the underpass would or may affect [her] property or [her] occupation, use and enjoyment of same-�.

On 19 December 2022, the Council informed the applicant that it was extending the time to consider her request, due to the number of records which had to be examined. In a decision dated 12 January 2023, the Council part granted the applicant-�s request. It identified four relevant records, all of which were listed as being dated 8 December 2022 on the records schedule provided. The Council released three records in full which comprised work in progress drawings of the project in question. The fourth record was an email from an engineering consultant company (Company A) to the Council, which appeared to address the matters raised in the applicant-�s FOI request. It seems that the Council sought information from Company A on foot of the applicant-�s request and that its response was released to her subject to the redaction of certain information under section 37 of the FOI Act, comprising the names and email addresses of individuals to whom the email was sent, and the name, email address and job title of the author of the email. In her request for an internal review, the applicant argued the details of the sender of the email should not have been redacted. She also sought colour copies of the drawings released.

On 10 February 2023, the Council indicated that it had affirmed its original decision, although it also released 14 records, described as -�various iterations and updates-� of the drawings already provided. It maintained its reliance on section 37 to refuse access to details relating to the author of the email released to the applicant on the basis that he/she was not an employee of the Council. The Council also stated that the information contained in the -�lengthy email-� provided to the applicant with its original decision -�was not a record at all-� but that rather it was an attempt by the Council -�to be as helpful as possible in explaining all the issues surrounding the underpass and the ancillary and associated considerations-�. It provided the applicant with colour versions of the maps previously released to her. On 15 April 2023, the applicant applied to this Office for a review of the Council-�s decision. In her application for review, the applicant set out her view that the Council had not carried out comprehensive searches in processing her request and that further records exist.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant-�s comments in her application for review and to the submissions made by the Council in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the record released by the Council with its original decision was an email dated 8 December 2022 from Company [A], which was consulted in relation to the applicant-�s FOI request. I am satisfied that this record, which was released in part, is outside the scope of the applicant-�s request as it post-dates the applicant-�s request made on 23 November 2022. The FOI Act provides for a right of access to records that are held by the FOI body at the date of a request. In circumstances where I have determined that the record is outside the scope of the request, I am not required to examine the Council-�s reliance on section 37 to withhold access to certain information contained in the record.

During the course of the review, the Council clarified that it had withheld access to some information in the records released at internal review on the basis of section 37, although it had not informed the applicant of this. The Council also released eight additional records to the applicant during the course of this review, subject to the redaction of certain information under section 37 of the FOI Act.

The applicant has confirmed to this Office that she is seeking a review of the Council-�s reliance on section 37, as well as its effective refusal to release additional records under section 15(1)(a) of the FOI Act.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access to additional records relating to plans providing for an underpass as part of the proposed N11/N25 Oylegate to Rosslare Harbour motorway under section 15(1)(a) of the FOI Act, and in refusing access to certain information contained in records released at internal review stage or during this review under section 37 of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I wish to note the following points.

First, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Secondly, during the course of this review the applicant raised concerns about her dealings with the Council and its handling of her FOI request. It is important to note that this Office has no role in examining the administrative actions of FOI bodies, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act.

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, this Office requested submissions from the Council in relation to the searches it had undertaken to locate the records sought by the applicant in this case. In response, the Council said that its initial response to the applicant-�s request was -�incorrect-�. It said that the records sought -�exist and are currently available-�, but were not retrieved as it considered that the consultant-�s -�very detailed report adequately addressed the queries raised in the original FOI request-�. It said that the request was dealt with as a request for information as opposed to a request for records, and that it was -�not possible-� to extract records in relation to a specific underpass on a project of such size over twelve years. The Council said it had submitted a request to the consultants to retrieve meeting records should they exist and that it would provide an update to this Office in due course. No such further information has been provided in this regard.

The Investigating Officer also queried whether the agencies referenced in the records released to the applicant, including Transport Infrastructure Ireland (TII), Tramore House Regional Design Office (THRDO) and Company [A] were service providers to the Council. Section 11(9) of the FOI Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. Section 2 defines -�service provider-� as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.-�

The effect of section 11(9) is that any records held by a service provider that relate to the service provided for the FOI body are deemed to be held by the FOI body for the purposes of the FOI Act and a right of access to such records exists unless they are otherwise exempt. This does not mean that all records held by the service provider are subject to the FOI Act. The records must relate to the service provided for the FOI body.

In response, the Council said that THRDO is a shared service provider to local authorities in the Southeast and provides consultancy services in the delivery of major and minor infrastructure projects. It said that the administrative functions of THRDO are undertaken by Waterford City and County Council. It said that a Service Level Agreement (SLA) exists between the Council and THRDO. The Council also said that Company [A] was appointed as the Council-�s technical advisers for phases 1-4 of the Oilgate to Rosslare (N11-N25) Scheme. It said that Company [A] is authorised to act on the Council-�s behalf regarding consultations in relation to certain aspects of the project and that Company [A] is a service provider to the Council.

The Council said that it did not ask Company [A] for its records, rather, it asked Company [A] for a response to the points raised in the FOI request, which in the Council-�s view was sufficient. It also said that it did not approach TII for records. Although, in this regard, I note that that applicant made a separate request to TII for relevant records relating to the same matters. The Council did not indicate whether it considered if THRDO might hold any relevant records falling within scope of the request.

As set out above, during the course of the review, the Council informed this Office that eight additional records had been located and released to the applicant in part.  It also informed this Office that it had not carried out searches for relevant records, and instead it chose to provide information to the applicant in response to her FOI request.

The review before this Office relates to the Council-�s decision to refuse access to the records sought under section 15(1)(a) of the FOI Act. As set out above, section 15(1)(a) 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. The Council has acknowledged that it did not undertake searches for relevant records in this case. It has also confirmed that other records exist within the scope of the applicant-�s request. In the circumstances, I find that the Council was not justified in its effective refusal to release additional relevant records under section 15(1)(a) of the FOI Act.

I consider that the appropriate course of action to take is to annul the Council-�s effective decision to refuse to release additional records under section 15(1)(a) of the FOI Act, the effect of which is that the Council must consider the applicant-�s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council-�s decision.

Section 37

I have carefully examined all of the records concerned in this case. I shall use the numbering scheme set out in the records schedules provided by the Council for ease of reference. While the Council purported to identify four records at original decision stage, 14 additional records at internal review stage and 8 further records during the course of this review, I am satisfied that there are a number of duplications. Furthermore, while the Council relied on section 37 in respect of information withheld from a number of the records released, it has been inconsistent in its application. It is clear to me that the Council released some records subject to the redaction of information under section 37, which were released to the applicant in full either with its original decision or during the course of this review.

I am proceeding on the basis that the Council-�s decision to withhold access to information which was previously or subsequently released in full is not under review. Therefore, I will solely consider the applicability of section 37 to the names and contact details of employees of Company [A] contained in the following records:

• Internal review (IR) records 4, 5, 6, 8, 9, 10, 11, and 12
• Additional (AR) records 3 and 4

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers). This Office takes the view that while the exclusion applies to the names of the service providers themselves, it does not, however, apply to the names of employees of those service providers.

The information withheld comprises the names and email addresses of employees of Company [A]. It also includes the qualifications of one employee of Company [A], as well as two telephone numbers, namely, a direct line to the employee and a general phone number for Company [A]. The general phone number is not connected to any identifiable individual(s) and I find therefore that it cannot fall within the scope of section 37(1). In the circumstances of this case, I am satisfied that section 37(1) applies to the remaining withheld information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.

Sections 37(2) and 37(5) of the FOI Act set out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances set out in section 37(2) arise in this case.

Section 37(5) 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. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

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.

I am required to disregard the applicant's motives for seeking access to the records sought, other than insofar as it reflects a public interest factor in favour of releasing the records concerned. I note that the applicant is seeking access to records relating to roadworks in the context that they may affect her property. I also note that she has not made any arguments that the public interest favours the release of the third party personal information concerned. Neither has the Council set out any public interest factors to which it had regard in arriving at its decision to refuse access to information under section 37.

I have had careful regard to the records concerned and to the information withheld by the Council. It is not clear to me how the release of the names and contact details or qualifications of staff members of a third party company would shed any light on the Council-�s functions in relation to CPOs, on its management of roadworks or on related matters. In the circumstances of this case, I am not aware of any public interest that would, on balance, outweigh the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.

In summary, with the exception of the general phone number for Company [A], which I direct it to release, I find that the Council was justified in refusing access, under section 37(1) of the FOI Act, to the names and contact details of employees of the service provider contained in the records released to the applicant at internal review stage and during the course of this review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. I annul its decision to refuse access, under section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant-�s request and I direct the Council to undertake a fresh decision making process in respect of the request. I affirm its decision to refuse access to the majority of the information withheld on the basis of section 37 of the FOI Act. I find that the public interest, on balance, does not warrant its release. I annul its decision to refuse access to the remaining information under section 37 and direct its release.

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.
 

Sandra Murdiff
Investigator