Ms X and Roscommon County Council [2024] IEIC 144737 (12 August 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Council was justified in refusing access to Planning Enforcement records relating to the applicant

12 August 2024

Background

The applicant's FOI request to the Council of 30 August 2023 sought access to all records in her name, "[i]ncluding investigation by council into enforcement notice." The Council designated this request as Reference No. 1329. Its decision of 24 October 2023 noted the applicant's subsequent clarifications that she was seeking relevant records, from January 2019 to September 2023, as held by the Council's Planning Department in relation to Planning Enforcement.

The Council's decision covered two Planning Enforcement files (UDR 2678 and UDR 2457). It granted full access to UDR 2678 and partial access to UDR 2457. In relation to the remainder of UDR 2457, it refused access to parts of records 1, 2, 4, 12, 19, 37, and 40, and fully withheld records 3, 7, 9, 14, 24 and 28, under sections 32(1)(a)(i) (investigation of offences), 32(1)(a)(ii) (enforcement of any law), 37(1) (personal information) and 42(m) (identity of informant) of the FOI Act.

On 24 November 2023, the applicant sought an internal review. The Council's internal review decision of 12 December 2023 affirmed its decision on the matter.

On 17 December 2023, the applicant applied to this Office for a review of the Council's decision. During the review, the Council released record 7 in full. It also provided the applicant with a transcript of record 39, further to her comments that she could not read the copy released to her.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Council and the applicant, the contents of the records at issue, and the provisions of the FOI Act.

Scope of Review

As the applicant is aware, this review is confined to whether the Council's full/partial refusal of access to records 1, 2, 3, 4, 9, 12, 14, 19, 24, 28, 37, and 40 on UDR 2457 is justified under the FOI Act. The review does not extend to any other matter, including the applicant's dissatisfaction with the Council's performance of its functions and its handling of her FOI requests.

Neither does the review extend to examining the Council's decisions on any of the applicant's other FOI requests. I note here that the internal review application of 24 November 2023 covers FOI request Reference Nos. 1329, 1342 and 1344, and that some of the applicant's correspondence to this Office appears to concern a number of FOI requests to the Council. I raised this in my letter to the applicant of 24 July 2024. However, the applicant's responses of 25 July did not comment on this particular issue. As outlined in my letter of 24 July, the Office is proceeding on the basis that the applicant has not applied for reviews of the Council's decisions on the other two FOI requests.

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Preliminary Matters

In essence, the applicant says that she made her FOI request to fully understand the Council's actions on a particular matter and that she is trying to prove a particular relevant issue. She says that malicious complaints have been made about her. As noted already, she is dissatisfied with the Council's performance of its functions and its handling of her FOI requests.

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. Furthermore, as already explained, the review cannot extend to examining, making findings on or taking account of how the Council performs its functions generally. Neither have I any role in determining whether any complaints were malicious. I cannot take account of the applicant's comments on these matters.

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 public 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).

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, I must limit the descriptions I can give of the withheld details, and of the reasons for certain parts of my decision.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

InThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors , [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest." I also note that, in the Supreme Court case ofSheedy v the Information Commissioner ([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard".

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

The Council fully withheld record 3, and parts of records 1, 2, 4, 37, and 40, under sections 37(1) and 42(m) of the FOI Act. Having regard to the circumstances, section 42(m) appears most relevant to the details concerned. I will consider the application of this provision at the outset.

Section 42(m) - identity of informant

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, section 42(m)(i) provides for the protection of the identity of persons who have given information in confidence to FOI bodies in relation to the enforcement or administration of the law, to ensure that members of the public are not discouraged from co-operating with such bodies or agencies. The provision is not subject to a public interest test. In other words, if section 42(m) applies, then that is the end of the matter and no right of access exists.

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 supplied must have been given in confidence. The third is that the information supplied must relate to the enforcement or administration of the law.

Arguments and analysis

The Council says that disclosure of the relevant details could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence to it in relation to the enforcement or administration of planning law.

The applicant does not comment specifically on section 42(m). However, I have already set out her general comments as to why she feels that access to the details should be granted.

The records

Record 1 is a letter to the Council asking it to investigate an alleged unauthorised development. The Council has released details from record 1 showing that it was sent on behalf of multiple parties. Record 2 is a letter from the Council asking the third parties to complete a complaint form. Record 4 is a Council letter acknowledging receipt of such a form. Record 37 is a Council letter updating the third parties on the matter. Record 40 is an internal Council emailing detailing a complaint received from an individual. These records have been released except for (as appropriate) the third parties' names, addresses, and signatures, as well as part of a sentence in record 1 and brief excerpts of record 40.

The fully withheld record 3 is a complaint form alleging unauthorised development.

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First Requirement

I am satisfied that release of the withheld names, addresses, and signatures, and the other details withheld from records 1 and 40, would reveal the identities of the suppliers of the information concerned. I am also satisfied that disclosure of the assorted contents of record 3 would have the same result. I am satisfied that the first condition is met.

Second Requirement

The second requirement is that information supplied must have been given in confidence. Arguably, if people providing information to the Council regarding alleged unauthorised development were not reassured as to confidentiality, the Council's information gathering process would be compromised by the withholding of such information.

The purpose of section 42(m)(i) is to protect the flow of information from the public that FOI bodies require to carry out their functions relating to the enforcement or administration of the law. Thus, section 42(m)(i) may apply where information was given in confidence, but is subsequently found to be mistaken or unfounded. There is significant weight to safeguarding the flow of information to FOI bodies.

As noted earlier, the applicant contends that malicious complaints have been made about her, which could be taken as an argument that the third party identities should not be treated as confidential. As also explained, I have no role in examining whether complaints are malicious. However, it seems to me that disclosing the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public. In many situations, FOI bodies act on the information provided in good faith. When the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.

Having regard to the particular details at issue and the overall circumstances I accept that the information supplied in this case was given in confidence. I find that the second requirement has been met.

Third Requirement

The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. The Council says that the information provided concerned an alleged breach of planning laws. I accept that the information at issue (including that in record 40, having regard to the overall context and circumstances in which it was provided) relates to the Council's enforcement and/or administration of the Planning and Development Act 2000, as revised. I am satisfied that the third requirement is met in this case.

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Conclusion

As set out above, I am satisfied that the three requirements for section 42(m)(i) to apply have been met. I find that the Council was justified in refusing access to record 3 and the remainder of records 1, 2, 4, 37 and 40 under section 42(m) of the FOI Act.

Section 37(1) (personal information)

Given my findings above, I do not need to consider the Council's claim that record 3 and the remainder of records 1, 2, 4, 37 and 40 are also exempt under section 37(1). However, the Council relies only on section 37(1) in relation to excerpts of records 12 and 19. As the applicant is aware, I also intend to consider the application of section 37(1) to parts of records 9, 14, 24 and 28.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of an FOI request where access to the record concerned would involve the disclosure of personal information.

For the purposes of the FOI Act, personal information is defined in section 2 as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. Section 2 also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, and (xii) information relating to the property of the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

However, section 2 also excludes certain information, including names, from what may be considered as personal information where public servants and contractors are concerned. Generally speaking, the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant or contractor in the context of the particular position held, or any records created by the staff member or contractor while carrying out his or her official functions. The exclusion does not deprive staff members or contractors of the right to privacy generally.

Arguments and analysis

Records 12 and 19 are letters from a third party individual, purporting to set out matters of fact regarding that individual, the applicant and a particular property. The Council has released the majority of both records. It contends that the remainder comprises personal information relating to a third party. The applicant has not explained why she disagrees with the Council's position.

I am satisfied that the details withheld from records 12 and 19 identify the individual who wrote the letters concerned. I am also satisfied, having regard to the other details in the record, that the excerpts fall within examples (ii) and (xii) above of what must be considered as personal information. I find that section 37(1) applies to the redacted information.

It may be that the applicant obtained the letters from the individual and provided them to the Council. However, it is not necessary for me to establish this. It is not relevant to section 37(1) whether the record at issue was created or supplied by the person seeking access to it, or whether the requester may be already aware of the information at issue.

The applicant did not comment on my intention to consider section 37 in relation to parts of records 9, 14, 24 and 28. The Council's schedule describes records 9, 14 and 28 as planning enforcement reports, and record 24 as an internal email chain. I note that record 24 relates to the Council's investigation into alleged unauthorised development.

I have not identified any personal information in record 14. However, I am satisfied that records 9, 24 and 28 contain information concerning individuals other than the applicant, as follows:

Record 9, page three: the 20th to the 37th words (inclusive) of the second last sentence above "Recommendation".
Record 24: mobile phone number of Council staff member;
Record 28, page three: last 13 words of the third last sentence;
Record 28, page four: - ninth word to 18th words of the second last sentence, and the first two words of the last sentence, under "Part 7".

I am satisfied that the above details identify the third parties, and that they fall within examples (ii), (iii) and (xii) above of what must be considered as personal information. Insofar as the staff member's mobile phone number is concerned, I am satisfied that this detail is not covered by the exclusions in section 2 of the FOI Act referred to earlier. It seems to me that such a mobile phone number can be considered personal information in a way that a fixed direct line phone number at a place of employment cannot. While a mobile phone may be used in the course of carrying out staff functions, it may also be used outside of working hours and as such its use may not be confined solely to matters related to the position that the person holds as a member of staff. Accordingly, I find that section 37(1) applies to the above details.

The applicant may argue that in the overall circumstances, the various third party details also relate to her. Even if this is the case, I am satisfied that the applicant's personal information would be inextricably linked to that of the third parties involved (joint personal information). Therefore, section 37(7) would be relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.

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

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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)(a) provides for the grant of access to personal information relating to the requester. As explained above, it could be argued that the third party details comprise joint personal information relating to both the applicant and the third parties. However, I am satisfied that if this is the case, section 37(2)(a) would not apply in light of the provisions of section 37(7). I am 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. I have already set out the provisions of section 13(4) of the FOI Act. In relation to the question of the public interest, the overall effect of the provision is 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, as also noted already, the disclosure of records under FOI 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 already noted, 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 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

As set out earlier, the applicant says that she is seeking access to the records in order to fully understand the Council's actions, with which she is dissatisfied, and to prove a particular relevant issue. She says that malicious complaints have been made about her. I take her to argue, essentially, that there is a public interest in disclosing information showing how the Council has performed the relevant functions.

I accept that there is a public interest in disclosing information about the Council's performance of its functions. However, it is evident from the released elements of records 12 and 19 that they simply purport to describe various matters of fact from the author's perspective, that they do not contain any allegations or complaints, and that they do not describe any steps taken by the Council. In these circumstances, it seems to me that disclosing the relevant third party's personal identifying information would, at best, minimally serve the public interest. In turn, I am of the view that there is minimal, if any, weight to the public interest in disclosing the details.

Records 9, 24 and 28 were created by the Council and are of a sort that describe how it performed its functions. However, it seems to me that disclosure of the very brief excerpts of third party personal information that I have identified therein would add minimally to the understanding of the Council's performance of its functions. In turn, there is minimal weight to the public interest in disclosing the details concerned.

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).

In considering the weight of this public interest, it is relevant that disclosure of the details must be regarded as being effectively, or at least potentially, to the world at large. In my view, placing the relevant personal information in the public domain would result in a reasonably significant breach of various third party privacy rights.

I have given the matter careful consideration. In all of the circumstances, I do not accept that the public interest in releasing the details outweighs, on balance, the privacy rights of the relevant third parties. I find, therefore, that section 37(5)(a) does not apply.

I will now consider the Council's refusal of record 14, and the remainder of records 9, 24, and 28, under sections 32(1)(a)(i) and (ii) of the FOI Act.

Section 32(1)(a)(i) - investigation of offences/procedures employed

Section 32(1)(a)(ii) - enforcement etc. of any law

Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid. Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.

Generally speaking, section 32(1)(a) is a harm based exemption. Where an FOI body relies on this provision, it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure.

For instance, in relation to a claim under section 32(1)(a)(i), the FOI body should identify the relevant function or the relevant lawful methods, systems, plans or procedures. In relation to a claim under section 32(1)(a)(ii), it should identify the relevant law and explain whether it is the enforcement of, the compliance with, or the administration of that law that is at issue. In relation to both exemptions, it should then describe the nature of the prejudice or impairment expected (the harm), and explain how release of the particular record is expected to cause that harm and why it is considered that the harm identified could reasonably be expected to occur.

A mere assertion of an expectation of harm is not sufficient. Furthermore, while granting access to a record may be likely to have some effect, or while a record may relate to matters specified in paragraphs (i) to (x), it is not necessarily the case that disclosure could reasonably be expected to prejudice or impair the relevant specified matter.

Sections 32(1)(a)(i) and (ii) are subject to a public interest test; however, the test requires consideration only where certain limited circumstances exist (section 32(3)).

Arguments and analysis

I have already generally described records 9, 14, 24 and 28. I cannot detail either my request to the Council for its submissions on why these records are exempt under sections 32(1)(a)(i) and/or (ii), or the Council's response. If I did so, I would essentially disclose the contents of the records, which would be contrary to section 25(3) of the FOI Act. However, I can confirm that I have had regard to the entirety of the Council's arguments on the matter.

In summary, I referred the Council to the particular nature and content of the records and relevant circumstances. I said that I did not see how section 32(1)(a)(i) and/or (ii) apply, and I invited it to address these matters in its submission.

The Council replies that disclosure of these records at this point in time could reasonably be expected to prejudice or impair its investigation of alleged offences under planning laws, and/or prejudice or impair the enforcement of, compliance with, or administration of planning laws. It describes the records, and gives certain factual details. It asserts that various harms (which, again, I cannot outline due to section 25(3)) will arise from disclosure of the records at this point in time, and that they should therefore be maintained as confidential. However, the Council does not explain how disclosure now of the particular contents of the records could give rise to such harms.

I accept that the records relate to the Council's investigations of alleged offences under planning laws, and/or to its enforcement of, compliance with or administration of planning laws. However, this does not mean that the records qualify for exemption under sections 32(1)(a)(i) or (ii). Having regard to the circumstances of this case, the particular nature of details at issue and the Council's submission, it is not apparent to me how disclosure of the details could reasonably be expected to cause in the harms set out in these provisions.

Having given the matter very careful consideration, I find that record 14, and the remainder of records 9, 24 and 28, are not exempt under section 32(1)(a)(i) or section 32(1)(a)(ii) of the FOI Act. In the circumstances, there is no need for me to consider section 32(3).

Decision

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

I find that sections 37(1) and 42(m) of the FOI Act apply to record 3, to the details withheld from records 1, 2, 4, 12, 19, 37 and 40, and to the following parts of records 9, 24 and 28:

● Record 9, page three: the 20th to the 37th words (inclusive) of the second last sentence above "Recommendation".

● Record 24: mobile phone number of Council staff member;

● Record 28, page three: last 13 words of the third last sentence;

● Record 28, page four: - ninth word to 18th words of the second last sentence, and the first two words of the last sentence, under "Part 7".

I find that record 14, and the remainder of records 9, 24 and 28, are not exempt under the FOI Act. I direct the Council to grant access to the details concerned.

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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.

Anne Lyons

Investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms X and Roscommon County Council [2024] IEIC 144737 (12 August 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/144737.html Cite as: [2024] IEIC 144737

Irish Information Commissioner's Decisions

Ms X and Roscommon County Council