Whether the Council was justified in refusing access to a complete copy of a specified file relating to a roads enforcement complaint under section 37 of the FOI Act

5 March 2024

Background

By way of background, I understand that the applicant has had various dealings with different sections of the Council concerning some works carried out by a neighbour at an adjoining property, which the applicant maintains have affected his property. I also understand that at some point, the applicant made a complaint about a particular matter which was handled by the roads enforcement section. This case concerns the file relating to that complaint.

In a request dated 18 July 2023, the applicant sought access to a complete copy of a specified file held by the Council. In a decision dated 6 September 2023, the Council stated that, having engaged with the applicant, it understood that the file in question related to a particular roads enforcement complaint concerning a drainage issue made to the relevant municipal district office. The Council identified 19 records relating to the applicant's request, of which it released records 1, 7 and 9-19 in full. The Council said that it had consulted with the third party whose engagement with the Council had been set out in the records concerned (Mr A) and that it was refusing access to records 2-6 and 8 under section 37 of the FOI Act. I understand that Mr A indicated that he did not wish his personal information to be released.

On 10 August 2023, the Council notified Mr A of the applicant's FOI request. While I note that it referred to section 36 in its email, no argument has been made that the records sought contain commercially sensitive information. In the circumstances, I am satisfied that this was a clerical error and that the Council intended to refer to section 38 of the FOI Act. Section 38 applies where, at some stage in the decision-making process, the FOI body has formed the view that the records at issue qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or third party personal information, respectively) but that the records should be released in the public interest.

It does not appear from the correspondence between the Council and the third party provided to this Office for the purposes of this review that the Council intended releasing the records sought in the public interest. However, in any event, the Council refused the applicant's request on the basis that records 2-6 and 8 contained the personal information of an identifiable individual other than the applicant and that the public interest, on balance, did not favour their release.

In response to the Council's decision the applicant queried whether the records withheld could be released with the personal information redacted. While it is not clear from the records provided during the review whether the Council responded to this suggestion, on 14 September 2023, the applicant sought an internal review of the Council's decision. On 17 October 2023, the internal reviewer affirmed the Council's original decision on the same basis. He also stated that he did not see how it could be possible, given the nature of the records and the content, to release the records at issue with the personal information redacted, as it would form an incomplete document and would not be comprehensible. On the same date, the applicant applied to this Office for a review of the Council's decision.

During the course of this review the applicant made additional submissions in support of his view that the records at issue should be released. In particular, he made further submissions in relation to the public interest in release. The Council also made submissions in support of its decision to refuse the request.

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 all of the submissions made by the applicant and by the Council in support of its decision. I have also had regard to the contents of the records concerned and the correspondence between the parties as set out above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council's decision to refuse access to records 2-6 and 8 was justified under section 37 of the FOI Act.

Preliminary Matters                                                                        

In his correspondence with this Office the applicant referred to the Council's role in relation to relevant matters. It is important to note, as a preliminary matter, 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.

Analysis and Findings

As set out above, the Council refused access to records 2-6 and 8 under section 37(1) of the FOI Act. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that are considered to be personal information without prejudice to the generality of the foregoing definition, including (xiii) information relating to property of the individual.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph I provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Records 2-6 and 8 comprise email correspondence between Mr A and the Council concerning matters arising relating to works undertaken on the third party's property and matters arising, following the complaint made by the applicant. The records concerned contain references to another individual, who was acting on behalf of Mr A, as well as particularly sensitive personal information about Mr A.

In his submissions to this Office, the applicant stated that the records released to him by the Council in this case contained personal information relating to Council staff, himself and Mr A. He argued that the release of this information contained in records 1, 7 and 9-19 by the Council in response to his FOI request had set a "precedent" and that therefore, the remaining records should also be released.

This Office takes the view that the fact that a requester may be aware of the nature of the information or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. Similarly, the Commissioner also takes the view that it is not appropriate for this Office to direct the release of exempt information simply because an FOI body has previously released similar or the same information under FOI.

As noted above, the records sought concern the Council's engagement with Mr A on foot of complaints made by the applicant concerning works carried out on Mr A's land. Having carefully examined the records in question, and the context in which they were created, I am satisfied that the release of the records would involve the disclosure of personal information relating to Mr A and another individual and that section 37(1) applies.

Public interest

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

Section 37(5) 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

During the course of this review, the applicant stated that he understood that the onus was on the Council to demonstrate why the release of the records at issue would not be in the public interest. In this regard, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council of satisfying this Office that its decision to refuse access to the records at issue was justified.

However, that is not the end of the matter. As well as the presumption set out in section 22(12)(b), I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. Rather, the Commissioner must consider the content of the records sought and the interests engaged, which might suggest either disclosure or refusal.

Before I consider the applicability of section 37(5)(a), there are a number of additional important points to note. Firstly, I note that the applicant has made submissions to this Office referring to the damage caused to his property and his dissatisfaction with matters as they stand, as well as reasons why he should have access to the records sought. However, section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Therefore, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under FOI must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), which are not applicable in this case, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individual concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3), which provides that in performing any functions under the FOI Act, an FOI body must have regard to, among other things, 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, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case. In that case, the 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.

On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

The applicant's submissions

The applicant made comprehensive submissions to this Office in relation to the public interest factors which might apply in this case. While I will not list all of his arguments here, I can confirm that I have had regard to them for the purposes of this review and I will set out what I consider to be the most relevant parts of his submissions below.

The applicant argued that there was a public interest in transparency and accountability, in the promotion of public understanding and in the safeguarding of democratic processes. He also stated that there was a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair treatment for all and in securing the best use of public resources. He was of the view that all of these interests would be best served by the release of the records sought.

The applicant was also of the view that the Council (and other public bodies) had not adequately enforced various environmental and planning requirements in this case or properly investigated his complaints. Among other things, he stated that he had been trying to get matters rectified for over eight years and said that it was in the "[public's] best interests" to be made aware that what he considered to be unauthorised works could be carried out, "without any consultation".  In this regard, he referred to various matters which might give rise to a suspicion that a public body had been guilty of wrong-doing, such as the result of independent investigations or evidence of public concern about the matters in hand. However, he did not provide any evidence to this Office of such investigations or public concern.

In summary, the applicant was of the view that his neighbour's works had negatively affected the surrounding environment, caused damage to his own property and was in contravention of environmental and planning law. He was also of the view that the Council was obliged to enforce the laws he considered were being breached and that it did not adequately carry out its functions in this regard. In effect, he argued that the release of the records sought would reveal the breaches referred to and/or the inadequacy of the Council's response, both of which would serve the wider public interest, rather than his own private interest in these matters. On the other hand, he argued that the records might reveal that no wrongdoing took place and that this too would be in the public interest.

The Council's submissions

In its original decision, the Council set out a number of public interest factors which it had considered before arriving at its decision to refuse the applicant's request. It identified the public's right to know and the openness and transparency of a public body as factors favouring the release of the records sought. On the other hand, it stated that the need to preserve confidentiality having regard to the subject matter and the circumstances

of the correspondence in question, as well as its right to carry out such investigations without influence or perceptions of bias, weighed against the release of the records at issue.

The Council stated that while there was a public interest in ensuring transparency in the exercise of its statutory functions dealing with roads enforcement, there was a greater public interest in ensuring that the effectiveness of the Council's functions was "not prejudiced by disclosing third party personal data". It also stated that there was a significant public interest in ensuring that public bodies could carry out investigations and engage with third party landowners in accordance with legislative responsibilities under the Roads Act. The internal reviewer affirmed the Council's original decision on the same basis.

In its submissions to this Office, the Council outlined its engagement with the landowner in question. It also set out dates of inspections of the relevant section of the road by Council staff following remedial works carried out by the third party in question. The Council further stated that its planning enforcement section had also carried out investigations in relation to complaints by the applicant about the matters at hand. The Council's position, essentially, was that the applicant made a number of related complaints concerning the works carried out by his neighbour and that these were fully investigated. It referred to a meeting with Mr A in November 2021, and stated that the Municipal District Engineer emailed the applicant with a summary of the outcome of this meeting. The Council stated that the dispute in question is a civil matter between two landowners and that it has no further role in this matter. Essentially, its view is that any public interest in the release of the records has been met to a large extent by the updates and information provided to the applicant during the course of its engagement with the landowner and that the public interest in the right to privacy of Mr A outweighs any public interest in release.

Analysis

I have had close regard to the parties' submissions in this case, and to the content of the records concerned. While I have sympathy for the applicant, it seems to me that his arguments are grounded in his particular grievance with the landowner in question and with the Council's response to his complaints. This would appear to be a private rather than a public interest.

However, I am willing to accept that the applicant's submissions could be construed as an argument that there was a public interest in the release of records of engagement between an FOI body and a landowner, in circumstances where it would reveal a deficiency or failure to act on the public body's part, when it was obliged to do so under the relevant legislation. In this regard, I accept that there is a public interest in enhancing transparency concerning the manner in which the Council carries out its functions relating to the oversight and enforcement of planning, environmental and related regulations.

However, having carefully examined the records in question, I am satisfied that disclosing the records sought would provide limited further insight into how the Council dealt with certain issues which arose in relation to the complaints raised by the applicant. In this regard, I note the Council's submission that the applicant was kept updated about its engagement with the landowner throughout its investigations, and that this issue is now a civil matter between adjoining landowners, and that it has no further role.

Furthermore, as set out above, disclosure of the records must be regarded as being effectively, or at least potentially, to the world at large. As also noted above, privacy rights afforded to individuals under the FOI Act will 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. In the circumstances of this case, I consider that revealing to the world at large details in relation to the investigation of a complaint concerning works carried out on Mr A's property, as well as further personal details, would result in a significant breach of that individual's right to privacy. While the applicant is unhappy with how the Council acted in this matter, I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the Council's actions, or indeed those of Mr A. Neither do I have any remit to consider, or make findings on, the merits of such actions.

Having carefully considered the matter, I am not satisfied that public interest in the limited insight into the Council's actions in this case which would be derived from the release of the records at issue outweighs the right to privacy of Mr A and his representative. Accordingly, I find that section 37(5)(a) does not apply. 

Could the records be released in part?

In the interests of completeness, I note that the applicant queried why the Council could not release the records sought in part, by removing any personal information contained therein.

Section 2 of the Act defines "record" as including "a copy or part" of any thing falling within the definition of a record. Section 18(1) 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 head of the FOI body concerned considers appropriate, of the record with the exempt information removed. This would seem to be in line with the applicant's suggestion that the records could simply be released in part, with the personal information withheld. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

As set out above, I am satisfied that the vast majority of the information contained in the records comprises the personal information of identifiable third parties other than the applicant. I accept that a small amount of information in the records would fall within the exclusion set out at Paragraph I; namely information relating to staff members of the Council. However, I am satisfied that directing release of such information from the records at issue would not be in keeping with the Commissioner's approach to section 18 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision. I find that the Council was justified in refusing to release the records sought under section 37 of the FOI Act, as they comprise the personal information of individual(s) other than the applicant. I find that the public interest, on balance, does not favour their 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