Whether the Council was justified in refusing access to records relating to specific burial plots in Fingal Cemetery on the basis of section 37 of the FOI Act

27 February 2024

Background

In a request dated 8 August 2023, the applicant sought access to records relating to the purchase of two specific burial plots in Fingal Cemetery in 2017.   The applicant is a service provider who has subsequently carried out works on the burial plots in question. 

In a decision dated 5 September 2023 the Council identified 52 pages of records as falling within the scope of the applicant's request.   It refused access to the records concerned on the basis of section 37 relating to personal information.   On 6 September 2023 the applicant sought an internal review of this decision and on 2 October 2023 the Council affirmed its original decision. 

On 5 October 2023 the applicant applied to this Office for a review of the Council's decision.

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 applicant's comments in his application for review and to the submissions made by the Council in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In the course of his application to this Office, the applicant made a number of references to records which he considered should exist and which had not been identified as part of his request.  I therefore sought details from the Council with regard to the specific records raised by the applicant; namely invoices in relation to certain works which the applicant had carried out on the relevant burial plots.   In response, the Council indicated that the applicant's request clearly specified that he was seeking records in relation to the purchase of the two burial plots and records relating to any subsequent works undertaken by the applicant on the plots would not fall within scope.  I provided this information to the applicant as well as more general information in relation to the records management practices of the Council.  In response the applicant expressed himself satisfied that the Council had conducted all necessary searches for records relevant to his request.   As such I do not consider it necessary to examine this aspect of the applicant's request for review any further. 

In addition, in the course of the review by this Office, the Council sought for the first time to rely on the provisions of section 35, relating to information provided in confidence, with regard to the relevant records.    In correspondence with the applicant I provided him with an opportunity to comment on the applicability of this provision as it was the first time the Council sought to rely on this provision of the FOI Act.

This review is therefore solely concerned with whether the Council was justified in its decision to refuse access to the relevant records on the basis of section 35 and 37 of the FOI Act. 

Preliminary Matters                                                                        

Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Secondly, 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.  

Finally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent.  Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 37 -" personal information

Section 37(1) of the FOI Act 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 (including personal information relating to a deceased individual).

Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also provides that, without prejudice to the generality of the above definition, personal information includes 14 specific categories of information, such as (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual and (xiii) information relating to the property of the individual (including the nature of the individual's title to any property).    

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.

The applicant in his appeal to this Office said that the individual who purchased the two burial plots has been a customer of his for a number of years and as such he is already in possession of the individual's personal information.    The applicant said that the purchase of the burial plots in question was done in a manner which did not comply with the Council's regulations which were in place at the time of the purchase.  The applicant said that there is a public interest in knowing greater detail around the transaction.   The applicant also said that there is a public interest in transparency around how a public body performs its function as a cemetery authority.    

The Council said that the records at issue relate to confidential correspondence between an individual, the Council and a third party regarding the purchase of two burial plots.  It said that neither the applicant nor his business are referenced in the records.  It said that at no point has it received any correspondence from the individual in question showing they consent to the release of the information in the records to the applicant.   In fact, the Council said, the individual in question repeatedly sought assurances from the Council that the correspondence relating to the burial plots would be confidential.   The Council further argued that there is no public interest in favour of the release of the personal information and information relating to the personal property of the individual in question to the general public.    The Council also said that it is completely transparent in operating the Burial Ground Service; including through publishing bye-laws governing the area which are available on its website. 

I am somewhat constrained by the provisions of section 25(3) in relation to the description I can give of the records.  However, I can say that the records at issue relate to correspondence between the individual and Council officials concerning the purchase of the two specified burial plots.  The records also contain correspondence between the Council and a third party in relation to the purchase of the plots.

Having examined the records, I am satisfied that, bearing in mind the provisions of section 18, they contain the personal information of individuals other than the applicant.  In many cases the information can be described as very sensitive information relating to the burial arrangements for deceased individuals.    I am satisfied that the relevant records comprise personal information relating to individuals other than the applicant and I find that section 37(1) applies.   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.

I will now consider sections 37(2) and (5) of the FOI Act.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.

In particular, section 37(2)(b) provides for the grant of access to personal information in circumstances where the individual to whom the information relates has consented to release. As explained above, the applicant has said that the individual who purchased the burial plots in question is a customer of his business.  The applicant also said that the individual has supplied him with the 'grave papers' for the plots.   In the circumstances of the case, I am not satisfied that this demonstrates that the individual in question consents to the release of information relating to her in the records.   I am therefore satisfied that section 37(2)(b) does not apply. 

I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)

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 have no reason to consider that section 37(5)(b) applies.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to an 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 the FOI Act must be regarded, in effect, as release to the world at large, given that the 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 Act, which are not relevant here, FOI is not about granting access to information to particular individuals only. Furthermore, 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) of the Act, 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 individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the 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 again had regard to the comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ('the eNet judgment'). In relevant part, 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 a case 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 un-enumerated 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).

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 of cemeteries and burial grounds.   In my view, disclosing the relevant details would provide a small amount of insight into how the Council dealt with certain issues which arose in relation to the purchase of the two burial plots.    However, as set out above, disclosure of the details must be regarded as being effectively, or at least potentially, to the world at large.  Having carefully considered the records at issue, I am not satisfied that any public interest in releasing the information at issue outweighs the right to privacy of the third party individuals concerned. In particular, I consider that revealing to the world at large details in relation to the burial arrangements of a deceased individual would result in a significant breach of that individual's right to privacy.  Accordingly, I find that section 37(5)(a) does not apply. 

Consequently, I find that the Council was justified in refusing access to the records at issue under section 37(1) of the FOI Act.

Having found section 37(1) to apply to the records at issue I do not consider it necessary to examine the applicability of section 35(1) to the relevant records. 

Decision

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

Mary Connery
Investigator