Decision
Ms X and Galway City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-133665-Y8V9W9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-133665-Y8V9W9
Published on
Whether the Council was justified in refusing access to records concerning the felling of various trees and the Council’s ownership of certain lands
04/04/2024
References to the applicant include the other party to her request. Her FOI request to the Council of 6 August 2020, as clarified on 20 November 2020, sought access to records concerning:
“4 No. fellings on lands commonly referred to as "Salthill Park":
as well as access to
“All records held by Galway City Council regarding the issuing of Mr. [Z's] letter referring to a Bequeath and the claim of ownership of lands by Galway City Council”.
The request has already been the subject of two previous substantive OIC reviews, which I summarise below.
Case No. OIC-107276-G0B7S70 (decision issued on 3 September 2021 by Stephen Rafferty, Senior Investigator)
The Council refused the request on the basis that the applicant had not paid the requested deposit (€230) for a total estimated search and retrieval (S&R) fee of €460. Mr Rafferty found that the Council had not complied with certain FOI procedural requirements regarding fees. He annulled its decision and directed it to carry out a fresh decision making process.
Case No OIC-124697-Y4M3S5 (decision issued on 23 August 2022 by Deirdre McGoldrick, Senior Investigator)
The Council’s fresh decision of 25 February 2022 part-granted the request. It relied on various FOI provisions in relation to assorted withheld material, and redacted information on matters not covered by the request.
On 25 March 2022, the applicant sought an internal review. She listed further records that she said should have been considered for release. She also raised various issues not appropriate to the internal review process, such as seeking certified transcripts, material not covered by the request, answers to questions, and the amendment of or additions to records.
The Council’s position was that the internal review application was invalid and vexatious, and that the applicant should make a fresh application. However, Ms McGoldrick found that the Council was obliged to identify all valid elements thereof. She annulled the Council’s decision of 25 February 2022, insofar as elements thereof were validly the subject of appeal in the March 2022 correspondence, and directed it to carry out a fresh decision making process on those matters.
Background to the present review
The Council’s ensuing decision of 25 August 2022 relied on sections 15(1)(a) (reasonable searches) and 15(1)(i) (records already released). It said that there was no right of access to records relating to the Bequeath, because they had been created before the commencement of the FOI Act. It did not refer to any substantive exemptions being applied to other records.
The applicant sought an internal review on 5 December 2022. The Council’s internal review decision of 19 December 2022 affirmed its decision on section 15(1)(a) and the Bequeath records. It cited sections 29(1) (deliberative processes), 31(1)(a) (legal professional privilege), and 42(m) (identity of informant) in relation to other withheld details.
On 5 January 2023, the applicant applied to this Office for a review of the Council’s decision.
During the review, the Council agreed to release some further excerpts of the records (i.e. parts of records 67 and 135, and various references to media companies and contractors). If the Council has not already released the details concerned, I would ask it to do so promptly.
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 and correspondence between this Office, the Council and the applicant, as well as to the contents of the records at issue and the provisions of the FOI Act.
My letter to the applicant of 4 July 2023 described the matters that this review would cover. The scope of the review is confined to whether the Council’s decision on those matters is justified under the provisions of the FOI Act.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has, or may have, for making her FOI request. Furthermore, although the applicant says that the Council has treated her differently to others in apparently similar circumstances, this Office has no power to consider or make findings on how the Council performs its duties. The review cannot have regard to the applicant’s views on such matters.
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, the description I can give of some of the withheld information and of some reasons for my decision are somewhat limited in this case.
The release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
Finally, the applicant expresses concern that the Council’s decision makers on her request were conflicted, given their involvement in the substantive matters to which the requested records relate. She suggests that the Courts might hold that the Council’s decisions are voided accordingly.
While a review carried out under section 22 of the FOI Act does not examine the Council’s performance of its functions under the FOI Act, this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI Officers.
In The 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 of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [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, I 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.
Section 11(5) – records created before 21 October 1998
The applicant does not dispute that records relating to the Bequeath would have been created before the commencement date of the FOI Act for local authorities i.e. 21 October 1998 (the effective date). In any event, I am satisfied that the relevant records would have been created considerably before the effective date.
Generally speaking, section 11(4) of the Act provides for a right of access to records held by local authorities that were created on or after the effective date. Section 11(5) provides for a right of access to records created before the effective date (pre-commencement records) in certain limited circumstances, namely where:
In relation to section 11(5)(a) in particular, this Office considers that the provision is directed towards whether the substance or gist or subject matter of a record can be understood. The fact than an earlier record might shed new light on a record, or enable a requester to extend or analyse information in a later record, does not mean that the earlier record is necessary or expedient to understand the later record. This Office takes the view that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of a record created after the effective date (post-commencement record).
The parties’ arguments
The applicant claims that section 11(5)(a) applies because the records will verify a statement in the released record 88 regarding the Council’s ownership of lands. She says that the statement concerned appears to be undermined by details in the released records 30, 77, 80, 84, 85, 89, and 92. She says that there is no relevant file in Corporate Services, and that the Council only took particular steps in relation to the ownership matter in September 2021. She says that record 88 does not constitute prima facie evidence of what is stated, and that this Office should seek details of, and examine, the relevant will and/or grant of probate. In addition, the applicant says that disclosure will enable her to understand why the Council took the steps against her that she says it did not take against others in apparently similar circumstances. It has not been claimed that section 11(5)(b) is relevant.
The Council says that the applicant has not identified any post-commencement records that cannot be understood without access to the pre-commencement ones.
Analysis
As already explained, this review cannot examine or make findings on the Council’s performance of its functions. While I note the contents of records 30, 77, 80, 84, 85, 88, 89, and 92, this Office has no role in determining the veracity of any record, or in examining the Council’s claim of ownership.
I am satisfied that the substance of record 88 is capable of being understood in its own right. It seems to me that the applicant also understands the record’s substance. She seeks access to the pre-commencement records to verify or disprove the contents of record 88, and to help her better understand the Council’s basis for certain actions. However, this is not the same as requiring access to understand a post-commencement record’s substance, gist or subject matter. I do not accept that access to the requested pre-commencement records is necessary or expedient in order to understand record 88. I find that section 11(5)(a) does not apply.
Section 15(1)(a) – reasonable searches/whether further records exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to look for records.
The parties’ arguments
The applicant’s correspondence to the Council of 25 March 2022 itemises the records that she says should have been found or accounted for. I have generally categorised the records concerned, as follows:
The applicant provides various material (such as newspaper articles and other documentation) in support of her contention that further records should exist. She says that she paid the full S&R fee of €460, and that the Council did not tell her that its searches would stop when it reached the time on which that fee was based.
The Council’s decision of 25 August 2022 refers to section 27(5)(b) of the FOI Act, which provides that an FOI body shall not commence the S&R process until the deposit has been paid. It says it must follow “that work ceases on an FOI request when the fee/hours quoted to the requester have been reached.”
The Council says that it spent 26 hours 32 minutes searching, retrieving and scheduling records, and notes that the applicant’s S&R fee reflected an estimated 23 hours of searches. It says that it did not examine some further potentially relevant files because that estimated time had been reached. It also relies on section 15(1)(a) of the FOI Act on the basis that the searches already conducted were reasonable. It provides various further details and clarifications of its searches and related matters, aspects of which I will refer to in my analysis below.
Analysis
While I note the provisions of section 27(5)(b), the Council does not refer me to any provision in the FOI Act that enables or requires an FOI body to end its searches in the circumstances it describes. Neither is such an approach indicated by the Guidance Note on Fees and Charges (no 6) issued by the Department of Public Expenditure and Reform’s Central Policy Unit (CPU). In fact, one of the examples in the Note concerns a body carrying out searches beyond those estimated for. I am not satisfied, therefore, that the Council was entitled to stop searching on the basis that the estimated hours have been reached.
Overall, the Council’s position appears to be that because of the breadth of the request, any further searches for records covered by the request would cause a substantial and unreasonable interference with its work. However, it was open to the Council to seek to rely on section 15(1)(c) of the FOI Act (which, generally speaking, provides for the refusal of voluminous requests), and it did not do so. In turn, it is not open to me to consider the relevance of section 15(1)(c) in my review.
I will now consider the Council’s position that its searches are reasonable for the purposes of section 15(1)(a). At the outset, and while I note the applicant’s views on the matter, it is important to note that the FOI Act requires FOI bodies to take reasonable, rather than exhaustive, steps to search for records. It does not require bodies to account for every gap, or perceived gap, in a set of records.
While I note the considerable amount of time that the Council has spent on its S&R process, I am not satisfied that its submission justifies its position that the searches were reasonable. For instance, one part of the request seeks records that, essentially, relate to the applicant. I informed the Council of my understanding that it used the applicant’s surname to search only the Chief Executive’s email account, and that it did not use her surname to search other types of files/records. The Council does not dispute my understanding.
Neither does the Council dispute my understanding of other matters relevant to the adequacy of its searches generally, including that it searched no staff email accounts other than that of the Chief Executive; that it did not ask any relevant contractors (such as tree surgeons or its legal advisors) whether they hold records covered by the request; and that it did not search certain files, including some held in offsite storage areas, which it had identified as potentially containing records. I also note the Council’s position that it did not use any search terms that were not contained in the FOI request. While I accept that the Council is not obliged to generate an exhaustive list of search terms, it is in a better position to identify appropriate criteria for examining its own file holdings than an external party such as an FOI requester.
Accordingly, I am not satisfied that the Council has justified its position that the searches carried out to date have been reasonable. In the circumstances, it seems to me that the most appropriate step for me to take is to annul the Council’s refusal of further records covered by the request, and to make a new decision on this matter in accordance with the provisions of the FOI Act. The applicant has a right to seek an internal review, and a subsequent review by this Office, of the Council’s new decision.
Section 15(1)(i) – records already released
The Council’s decision of 25 August 2022 relies on section 15(1)(i) further to the applicant’s contention that the Council had not found various correspondence which she had sent to it. Section 15(1)(i) of the FOI Act provides that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where (i) the records are available to the requester concerned or (ii) it appears to the head concerned that that requester is acting in concert with a previous requester.
The decision of 25 August 2022 says that the relevant correspondence “would already be in [the applicant’s] own possession”. However, the Council’s contacts with me do not correct my understanding that it has neither found the relevant records nor previously released them to the applicant. In the circumstances, I am not satisfied that the Council has justified its reliance on section 15(1)(i) in relation to the applicant’s correspondence. In circumstances where it is not apparent that the Council has found the records concerned, I do not feel it appropriate to direct their release. Rather, I direct the Council to make a new decision in relation to such records in accordance with the provisions of the FOI Act.
Section 29 – deliberative processes
The Council relies on section 29(1) of the FOI Act in relation to records 95 and 97. These consist of cover emails and draft versions of the released, finalised, minutes comprising record 104.
Section 29(1) provides that an FOI request may be refused if (a) the record contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered by the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. Section 29 also specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.
The requirements of sections 29(1)(a) and (b) are independent, and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to my satisfaction that both requirements have been met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. I also draw a distinction between matters relating to the deliberative process and administrative matters or arrangements.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. However, to avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. Any arguments against release should be substantiated and supported by the facts of the case. It should be shown how release of the records would be contrary to the public interest e.g. by identifying a specific harm to the public interest flowing from release. While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant to the issue of the public interest.
The parties’ arguments
The applicant says that the records should be released because the deliberative process, and various other matters, have concluded.
The Council says that the drafts contain details that are not in the amended final version. In response to my query as to how the finalisation of minutes is a deliberative rather than an administrative process, the Council says that it deliberated on the matters discussed, which “still remain part of the deliberative process because the FOI body is entitled to deliberate on processes without undue intrusion which may contaminate that process.” I also asked the Council to identify the specific harm(s) to the public interest that flow from release, particularly given the disclosure of record 104. The Council identifies details the release of which it says would cause it reputational harm. It says also that release of the records “may impair future functions of Galway City Council which may arise.”
Analysis
I consider the finalisation of minutes to be an administrative process such that section 29(1)(a) does not apply. Even if this can be said to be part of a much wider deliberative process, the Council’s arguments do not in any event satisfy me that disclosure would be contrary to the public interest.
Other than the covering emails therein, records 95 and 97 are largely similar to record 104. The differences seem to me to comprise of stylistic and phrasing amendments. Furthermore, record 104 includes the details that the Council says will have reputational repercussions if disclosed from records 95 and 97. In the circumstances, I do not see, and the Council has not explained, how any reputational harm can be caused by disclosure of records 95 and 97. Finally, while the Council refers generally to the impact of release on its “future functions”, it does not does not identify the relevant functions (or decision making processes, if this is what it means), or explain how such functions/processes could be harmed through disclosure of records 95 and 97. The Council does not argue that disclosure would make the requester aware of a significant decision that the FOI body proposes to make, and I cannot identify any such details in the records.
In the circumstances, I find that neither section 29(1)(a) nor (b) applies to records 95 and 97.
Section 31(1)(a) – legal professional privilege
The Council relies on section 31(1)(a) of the FOI Act in relation to query 1 in record 61, the one paragraph remaining withheld from record 67, and record 75.1 in full. Section 31(1)(a) must be applied to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:
In relation to advice privilege in particular, this privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. I take the view that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
The parties’ arguments
The applicant notes that record 61 originated from a staff member in a particular department, and comments on the Council’s exclusion of two other queries therein. She says that record 67 comprises emails between Council staff, and that record 75.1 concerns the released record 52.
The Council says that the relevant records comprise confidential communications made between it and its legal advisor for the purpose of obtaining and/or giving legal advice and that they attract advice privilege. The Council says that record 52 was likely to have been released in error. It also says that the staff members who previously dealt with the FOI request no longer work for the Council.
Analysis
Having examined the details, I am satisfied that query 1 of record 61, the remaining paragraph in record 67, and record 75.1 in full, comprise confidential communications made between the Council (including its non-legal advisory staff) and its professional legal adviser for the purpose of obtaining and/or giving legal advice and/or are part of a continuum of communications arising from an initial request for legal advice. I also satisfied that the remaining two queries in record 61 are not covered by the request.
The applicant appears to claim that the Council has waived privilege by releasing record 52, which I note is a request to the Council’s legal advisor for legal advice. As the applicant is aware, I consider it relevant that the Council contends the record was likely to have been mistakenly released. I accept the Council’s position. The applicant also notes that the Council originally claimed section 31(1)(a) over record 67 in full. She does not elaborate but, for avoidance of doubt, I do not consider that privilege ever applied to the details released from record 67. Therefore, the issue of whether the Council waived privilege over such details does not arise. I am satisfied that, in all of the circumstances, the Council has not waived privilege over query 1 of record 61, the remaining paragraph in record 67 or record 75.1. I find that these are exempt under section 31(1)(a).
Section 37 - personal information
The Council’s schedule of records indicates that it has withheld various details under section 37(1) of the FOI Act. However, as the applicant is aware, this review is considering only the material redacted from records 27, 40, 54, 80 and 135, as well as the application of section 37 to records 82 and 93, which the Council initially refused under section 42(m).
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of a request if access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual). It is a mandatory provision i.e. it must be applied to all records containing personal information.
Section 2 of the FOI Act defines personal information 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 lists 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (xiii) information relating to 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.
Insofar as staff members of FOI bodies are concerned, paragraph (I) of section 2 sets out a number of matters that are excluded from being considered as their personal information. Generally speaking, paragraph (I) excludes the names of such individuals, information relating to their office, position or functions and the terms upon which that office or position is held, and anything written or recorded in any form by the individual in the course of and for the purpose of the performance of their functions.
This is not to say that all information relating to staff members of FOI bodies is excluded from section 37. This Office takes the view that the above exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the position held while carrying out his or her official functions. It does not deprive public servants of the right to privacy generally.
Record 54
The Council has withheld the final two pages of record 54, which its schedule describes as photographs taken by a member of the public. The applicant maintains that these photographs are of her and the other party to the request.
I have noted the contents of the photographs concerned, which are not very clear. The faces of the individuals therein are obscured to different degrees. The Council says that it is unable to verify the identities of those individuals. While one could argue that disclosure in such circumstances would not involve the disclosure of personal information, it is possible nonetheless that the individuals would be recognisable to third parties, having regard to various other details in the photographs. I accept that disclosure of the photographs would disclose personal information. I find that they are exempt under section 37(1) of the FOI Act.
Records 82 and 93
As the applicant knows, the Council claims that one paragraph of record 82 is not relevant to the request. The applicant notes that the schedule describes record 82 as a formal complaint. She also asks various questions about its contents, which I cannot answer due to section 25(3).
The applicant also comments on the Council’s initial application of section 42(m) to records 82 and 93. She says that record 82 concerns a matter that has been adjudicated on in the courts, and that the judicial process is to be administered in public rather than by secret statements. She asks “why the secrecy?” in relation to record 93. It should be noted that such matters and comments are not relevant to my consideration of whether details comprise personal information for the purposes of the mandatory section 37(1).
I note that record 82 is described generally as an “email from [a resident of a particular road] … formal complaint on illegal felling of trees”. However, having examined it, I accept the Council’s position that one paragraph thereof relates to a matter that is not covered by the scope of the request. Accordingly, I am satisfied that the relevant paragraph is outside the scope of this review.
Insofar as the remainder of record 82 is concerned, I accept that the sender is identifiable from the name and address therein. I can also accept that the sender is identifiable from the first seven words of both the first and second paragraphs. I am satisfied that these details comprise personal information, and I find that they are exempt under section 37(1) of the FOI Act. I do not consider the sender to be recognisable from the remainder of this record, however, and the Council has not explained how this might be the case. Therefore, I do not consider the remainder of record 82 to be exempt under section 37. I should say here that the sender’s email address is not included in the copy of the original of record 82 that the Council sent to this Office; if it had been included, I would likely have considered it to be the personal information of the sender concerned.
The Council’s schedule describes record 93 as an “email from [a resident of a particular road] with photos taken by a neighbour”. I am satisfied that the sender of the email would be identifiable even if names were redacted. I also accept that the particular content of the photos would enable the identification of the party who took them. I find that section 37(1) applies to record 93 in full.
Excerpts of records 27, 40, 80 and 135
The applicant does not explain why she appears to dispute the redactions made to these records. Bearing in mind the requirements of section 25(3), I note that the Council has redacted an annotation comprising the personal mobile telephone number of a Garda (record 27), a Councillor’s personal email address (record 40), an individual’s name and employment details (record 80), and a photograph and address of a house that is not the applicant’s (remainder of record 135). I am satisfied that these details comprise information of a type that meets both definitions of personal information and/or is captured by one or more examples of what comprises personal information. I am also satisfied that the details relating to public servants are not covered by the exclusions to what may be considered personal information of such parties. I find that section 37(1) applies to these details.
Joint personal information
Some of the details that I have found to be exempt under section 37(1) relate to the applicant as well as other parties (joint personal information). However, 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.
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.
In relation to the photographs withheld from record 54, I referred the Council to various matters that I cannot include here due to section 25(3). I invited it to explain why it had withheld the two pages concerned. The Council does not engage with my comments other than to say that it “cannot conclusively or satisfactorily verify the identity of the persons contained in the two pages withheld, and release would risk the release of other individuals’ personal data.”
As noted, the photographs are not very clear and the faces of the individuals therein are obscured to different degrees. However, having regard to the matters to which I referred the Council, the contents of the photographs and all of the circumstances, I accept that the photographs are of the applicant (and, for avoidance of doubt, the other party to the request). I find that section 37(2)(a) applies to record 54.
As noted above, some of the remaining information can be categorised as joint personal information relating to the applicant and assorted third parties. However, I have already outlined the provisions of section 37(7). I am satisfied that the joint personal information does not fall for release further to section 37(2)(a) of the FOI Act.
I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
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 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 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 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) 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 also had regard to the judgment 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 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.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.
Record 93 can be described as more informative than the other records. Nonetheless, the details at issue are quite limited overall. It is debatable if their disclosure would provide any further insight into the Council’s performance of its functions than what is evident from the already released material. In any event, the insight that may be gained by placing such details into the public domain does not mean that there should be no protection of personal information. On the other hand, I am satisfied that disclosure of the personal information would result in significant breaches of privacy rights. Furthermore, I do not believe it is appropriate for me to direct the release in the public interest of personal information, effectively to the world at large, on the basis of the applicant’s dissatisfaction with the actions of the Council or others.
In the circumstances, I do not accept that the public interest in releasing the details concerned outweighs, on balance, the privacy rights of the relevant third parties. I find, therefore, that section 37(5)(a) does not apply.
Section 35 - confidential information
Section 42(m) – identity of informant
Although the Council applied section 42(m) to records 82 and 93, it says now that it should have relied on section 35(1)(a) instead. However, I have found that section 37 applies to record 93 in full and to parts of record 82. Therefore, I need only consider here the Council’s refusal of the remainder of record 82.
Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record (i) contains information given to an FOI body in confidence and (ii) on the understanding that it would be treated as confidential and (iii) its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and (iv) it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
The Council makes no arguments as to why section 35(1)(a) applies. In particular, it was invited to explain how disclosure of record 82 without the sender’s name and address would lead to that person’s identification. It did not do so. Having regard to the content at issue, I have no reason to consider that its disclosure would identify the sender, such that I could in turn accept that this outcome would be likely to prejudice the giving to the body of further similar information from the same person or other persons (requirement (iii) above). Given that all four elements of section 35(1)(a) must be met in order for it to apply, I find that section 35(1)(a) does not apply to the remainder of record 82.
Although the Council appears to no longer rely on section 42(m), I will consider its potential application to the remainder of record 82 for completeness. Section 42(m) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of: (i) 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) or (ii) any other source of such information provided in confidence to an FOI body (or where such information is otherwise in its possession).
In essence, this provision is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law. The applicant’s comments about matters having been adjudicated on in the courts, and on the public nature of the judicial process, are not relevant to my consideration of the exemption.
One requirement of section 42(m) is that disclosure of the withheld information could reasonably be expected to reveal, or lead to the revelation of, the identity of the supplier of information. As set out above, the Council has not explained how disclosure of the remainder of record 82 could reasonably be expected to reveal, or lead to the revelation of, the identity of its sender. Having regard to the details, I do not see how their disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of the supplier of the information concerned, or how disclosure could reasonably be expected to reveal or lead to the revelation of the identity of any other source of such information. I find that section 42(m) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision.
I affirm the Council’s refusal of access to the pre-commencement records. I affirm its application of section 31(1)(a) to query 1 in record 61, the remaining withheld paragraph in record 67, and record 75.1 in full. I affirm its application of section 37(1) to the details withheld from records 27, 40, 80, and 135, to record 93 in full, and to the name, address and the first seven words of both the first and second paragraphs of record 82.
I annul the Council’s refusal of further records covered by the request under sections 15(1)(a) and 15(1)(i). I direct it to make a fresh decision on both matters in accordance with the provisions of the FOI Act.
I also annul the Council’s refusal of records 95 and 97 and of the remainder of records 54 and 82, and I direct the Council to grant access to the details concerned.
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