Decision
Mr X and Kildare County Council (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170343
Published on
From Office of the Information Commissioner (OIC)
Case number: 170343
Published on
Whether the Council was justified in refusing access to records relating to the assessment of derelict sites, on the grounds that the records are exempt under section 32(1) of the FOI Act
01 February 2018
By email dated 12 May 2017, the applicant (on behalf of a residents' association) made an FOI request to the Council for "information regarding the assessment of sites in [a named town] under the Derelict Sites Act 1990", and specified a particular property of interest to him. On 9 June 2017 the Council granted access to some of the information and refused access to the remaining records, on the grounds that the information in them was exempt under section 32(1), 35(1) and 37(1) of the FOI Act. On 14 June 2017, the Council received the applicant's application for an internal review of that decision. The Council issued its internal review decision on 30 June 2017, in which it affirmed its original decision to refuse access, under sections 32 and 37. On 4 July 2017 the applicant sought a review by this Office of the Council's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties, as well as the contents of the records that were provided to this Office by the Council for the purposes of this review.
During the review, the Investigator asked the applicant whether he sought access to certain records which identify individuals and contain details of land registration, vehicle registration and correspondence with property-owners. The applicant replied that he does not seek access to the identities of individuals whose property is involved and that information on a person or persons should be redacted. Rather, he seeks access to information relating to the process of assessing a property as derelict. Having regard to this, the following records fall outside the scope of this review: Records 6, 7 and 11; the third page of Record 12; the name and address of the property-owner contained in Records 10, 14, 17 and 36; Records 20, 35, 52 and 57. As the Council claimed section 37 of the FOI Act over Records 6, 7, 11, 35, 52 and 57, I do not need to consider this exemption.
Accordingly, this review is solely concerned with whether the Council was justified in refusing access to the remaining withheld records (the records) under section 32(1) of the FOI Act.
Before considering the exemptions claimed, I wish to note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, the onus is on the Council in this case to satisfy me that its decision to refuse access to the records at issue was justified.
Section 32(1)(a)(ii) is relevant where access to the record could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified. A mere assertion of an expectation of harm is not sufficient.
The Council is tasked with an enforcement role under the Derelict Sites Act 1990. It says that the property to which the applicant refers should be subject to ongoing review and periodic inspection. It submits that releasing the records would impair and prejudice its ability to successfully progress enforcement action against the property-owner concerned and that the information provides specific details of its investigative procedures. It says that the use of the information may be appropriate to enforcement action against the property owner at a future date. It also says that it seeks to protect the content of its communications with the property-owner; however, as noted above, the Council's correspondence with the property-owner falls outside the scope of this review.
I should note that the Council did not point to the specific details of its investigative procedures which it says that the records disclose. Neither did it claim that the discretionary exemption at section 30(1)(a) applies in relation to its investigative functions.
Although the Council has asserted particular harms, it has not shown how releasing the records could reasonably be expected to cause the alleged harms. I consider it relevant that the records which the Council has already released in this case disclose the following: the property concerned was under investigation on receipt of complaints that it was derelict; the Council issued a litter fine in respect of the property; although the property was vacant, it was cleaned up and the Council deemed it not to be derelict, but issued letters to its owner regarding waste and vegetation. Given that such details about the Council's investigation are already known, it is not apparent to me how disclosing the records could result in the alleged harms. I also note that the Derelict Sites Act 1990 defines the term "derelict site" and therefore the statutory criteria for dereliction are known.
In the circumstances, I am not satisfied that releasing the records could reasonably be expected to prejudice or impair the Council's enforcement of legislation on derelict sites. I find that the Council is not justified in refusing access to the records under section 32(1)(a)(ii) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I annul the Council's decision and direct the release of the records.
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.
Elizabeth Dolan
Senior Investigator