Whether Tailte Éireann was justified, under section 41(1)(a) of the FOI Act, in refusing access to a specified instrument on the ground that disclosure is prohibited by the Land Registration Rules 2012 

5 January 2024

Background

In a request dated 7 February 2023, the applicant sought access to all records, including all maps, plans or drawings, disc tape or film which contains visual or non-visual images pertaining to a specified Land Registry instrument. On 15 February 2023, Tailte Éireann refused the applicant's request under section 41(1)(a) and (b) of the FOI Act on the ground that disclosure of the records is prohibited by the Land Registration Rules 2012. It said access to Land Registry Instruments is governed by Rule 159 of the Land Registration Rules 2012. Tailte Éireann said that the applicant may apply for a copy of an Instrument under Rule 159. It said any person who is entitled to inspect an Instrument may obtain a copy of the Instrument, on payment of the appropriate fee. It enclosed a copy of the relevant applicant form. On 19 May 2023, following a request by the applicant for an internal review, Tailte Éireann affirmed its original decision. On 22 May 2023, the applicant applied to this Office for a review of Tailte Éireann's decision to refuse the instrument in question.

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 correspondence referred to above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether Tailte Éireann was justified in its decision to refuse access to the specified instrument under section 41 of the FOI Act.

Analysis and Findings

In relation to the specified Instrument, Tailte Éireann said that it is prohibited from allowing access to an Instrument of the type sought except in accordance with Rule 159 of the Land Registration Rules 2012 (SI 483/2012) and that the record is therefore exempt from release under section 41(1)(a) of the FOI Act.

Section 41(1) of the FOI Act provides for the mandatory refusal of a request if:

a. the disclosure of the record concerned is prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule), or

b. the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

The Land Registration Rules 2012 are not listed in Schedule 3 and are therefore relevant for the purposes of section 41. The question I must consider, therefore, is whether the release of the Instrument sought is prohibited by Rule 159.

In its submissions to this Office Tailte Éireann said a Folio is the record of the registrations made in respect of a particular parcel of land. Folios are considered to be public records and are available to be viewed and obtained by any party. This can be done in one of two ways:

1. Through our website www.landdirect.ie where the registry map is available to view and any folio can be accessed and, if required, printed for the fee of €5.

2. On application to the registry we can provide a certified copy of a folio and its registry map for the fee of €40.

Tailte Éireann said, in contrast to this an Instrument is the file under which the documents lodged to make an individual registration are contained. This is the documentation lodged by the applicant's solicitor, or in certain circumstances the applicant(s) themselves, in support of their application for registration. Tailte Éireann said, these are not considered to be public records and access to these is restricted to certain parties by Rule 159 of the Land Registration Rules 2012.

Tailte Éireann stated that Rule 159 contains Rule 159(9) which allows for an applicant outside of these parties to make an application to access an Instrument where they demonstrate to Tailte Éireann's satisfaction that there are special circumstances applying that entitled them to a copy of an Instrument. Rule 159 of the Land Registration Rules 2012 are a continuation of previous provisions (such as Rule 188 of the Land Registration Rules 1972) that were first set down in the Land Registration Rules of 1937. Tailte Éireann said, all applications under Rule 159 are to be made to the authority using Form 96 of the Land Registration Rules 2012.

In its submissions to this Office, Tailte Éireann said the applicant made an application under Land Registration Rule 159(9) for a certified copy of a specified instrument number on 1 March 2023. It said the application was processed and completed on 17 July 2023, where certified copies of any and all documents pertaining to the applicant's commonage interest retained on the specified instrument were produced and issued.

Tailte Éireann said the applicant is not the applicant in the specified instrument. It said the applicant was advised by way of the certified copy which issued on 17 July 2023, that the instrument records an abandoned dealing. Tailte Éireann said the applicant does not have an entitlement to visibility of any references to or correspondence from and to a number of other parties retained on the instrument. Tailte Éireann said, as the specified instrument was abandoned, it did not materially affect either the applicant's commonage interest or that of those aforementioned parties.

Tailte Éireann said it is satisfied, based on the information before it that the applicant would not have demonstrated special circumstances that would have entitled him to a copy of the entire Instrument under Rule 159(9). Tailte Éireann also said if an applicant is not satisfied with its decision under a Rule 159/Form 96 case they are entitled to appeal its decision to court under section 15 of the Registration of Title Act 1964. In conclusion, Tailte Éireann contends that Instruments would fall under the class of documents that are not to be released pursuant to the provisions of sections 41(1)(a) &(b) of the Freedom of Information Act, 2014.

On 19 October 2023, I wrote to the applicant providing him with details of Tailte Éireann's submissions to this Office and invited him to make submissions in the matter. In his reply, dated 31 October 2023, the applicant said he disagreed with Tailte Éireann's comment that as the specified instrument was abandoned it did not materially affect his commonage interest. The applicant outlined how it has affected him. The applicant contends that he should be allowed to view the full instrument.

Rule 159 is concerned with the inspection of filed documents and with obtaining copies of such documents. It provides that only certain persons are entitled to inspect and obtain copies of the various filed documents. In other words, if a person wishes to inspect or obtain a copy of a filed document, he or she must first establish a right to inspect the document. Rule 159 requires that an application to inspect or obtain a copy of a document under the rule must be made in a particular form as specified in SI 483/2012. Before allowing inspection of a document by a person claiming inspection under Rule 159, the Tailte Éireann may make such inquiries and give such notices as it may think fit.

It is not a matter for this Office to determine whether the applicant has a right under Rule 159 to inspect or obtain a copy of the Instrument sought. In order to do so, he must submit an application in accordance with Rule 159. If his application is successful, he will obtain a copy of the record sought. As noted above, if an applicant is not satisfied with Tailte Éireann's decision under a Rule 159/Form 96 case they are entitled to appeal its decision to court under section 15 of the Registration of Title Act 1964. Furthermore, it is important to note that this Office has no role in examining the manner in which the property was registered.

In the circumstances, I am satisfied therefore that disclosure of the Instrument is prohibited by Rule 159, and that, as a result, it is exempt from release under section 41(1)(a) of the FOI Act. In conclusion, while I appreciate that the applicant will be disappointed by my decision, I am satisfied that the FOI Act does not afford a right of access to Instruments as an alternative to making an application in accordance with Rule 159.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tailte Éireann's decision.

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.
 

Richard Crowley
Investigator