Decision
Ms E and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-142972-Y7P0R0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142972-Y7P0R0
Published on
Whether the Council was justified in refusing access to a specific record contained in the applicant’s housing file, in full or in part, on the basis of sections 29, 35, 37 and 42 of the FOI Act
1 July 2024
In a request received on 17 April 2023, the applicant sought access to a copy of her housing file from 2016 to date. In a decision dated 22 May 2023, the Council granted her request in part. It identified 31 records, of which it released six in full. It refused access to the remaining records in full or in part on the basis of sections 29, 35(1)(a) or 37(1) of the FOI Act. On 16 June 2023, the applicant made an internal review request in relation to the Council’s decision on record 11. On 26 June 2023, she amended her internal review request to include records 10-30. The Council’s internal review decision on 5 July 2023 affirmed its original decision.
By letter received on 10 October 2023, the applicant applied to this Office for a review of the Council’s decision in relation to records 7 and 10-30.
During the course of the review, I notified the applicant of some matters arising in relation to the case, including my view that it was more appropriate to consider section 37 in relation to record 10 and section 42(m)(i) in relation to record 29. I also asked her to confirm whether she was seeking access to certain limited information withheld from records 12-22, 24-28 and 30, which related to other third parties and/or simply repeated complaint numbers or headings. In her response, the applicant did not address any of my comments, other than to state that record 10 was of the “most importance”.
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 correspondence between the applicant and this Office 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.
While the applicant reduced the scope of the records on which the Council’s decision was to be reviewed at internal review stage (i.e. to records 10-30), in her application to this Office, she added record 7 to the list of records to be considered. As the applicant has been notified, my review is confined to a consideration of the decision taken by the Council on her narrowed internal review request. It is not possible to amend or widen the scope of that request at this stage. Accordingly, I will not consider the Council’s decision in relation to record 7.
On foot of the applicant’s correspondence with this Office, as set out above, I notified her that, based on my understanding of her submissions, I was proceeding on the basis that it was only the Council’s decision in relation to record 10 that would be considered in this review. The applicant was invited to comment. In her response she did not object to the scope of the review. Record 10 includes a copy of an email from the applicant to the Council, which was released with redactions as part of record 11. Accordingly, the parts of the relevant email that were released in record 11 but withheld in record 10 will not be considered in this review. The applicant was also notified of this, but did not comment.
I am satisfied that the applicant has been provided with an opportunity to clarify or counter my understanding of the scope of the review and has not done so.
Having regard to the correspondence with the applicant as set out above, I am proceeding on the basis that this review is concerned solely with whether the Council was justified in its decision to refuse access to the remaining information in record 10, other than that released as part of record 11, under the provisions of the FOI Act.
In her correspondence with this Office the applicant referred to the subject matter of a particular complaint she had made to the Council. However, it is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
For the benefit of the Council, I note that some of the records released in part to the applicant referred to her complaints about an individual at a particular address. I also note that references to the address have been withheld from release in the body of the printouts from its complaints handling system. However, the heading in bold near the top of each page has not been withheld and reveals the address in full in certain records. I would urge the Council to take greater care in future when releasing records in part, to ensure that exempt information is consistently redacted.
While section 25(3) precludes me from revealing the content of an exempt record, the background to this case appears to lie in a complaint the applicant made to the Council about a neighbour relating to a CCTV camera. While the Council solely relied on section 29 to refuse access to record 10, as the applicant has been notified, in the circumstances of this case, I consider section 37 to be of more relevance. Accordingly, I will consider its application in the first instance.
Section 37(1) and 37(7)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 37(1) does not apply where the information involved relates solely to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).
Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that are considered to be personal information without prejudice to the generality of the foregoing definition, including (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, (xiii) information relating to property of the individual and (xiv) the views or opinions of another person about the individual.
This Office takes the view that the fact that a requester may be aware of the nature of the information contained in a record or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
As noted above, the record in question relates to a specific complaint made by the applicant about a third party and the Council’s discussion of matters arising. As noted above, record 10 includes an email from the applicant about the matters at hand, which has already been released to the applicant in part. In the circumstances of this case, where the applicant made the complaint about an identifiable individual, I am satisfied that the content and context of this record is such that it relates to the personal information of an individual other than the applicant, and/or the joint personal information relating to the applicant and the third party in question.
Having regard to the above, I am satisfied that section 37(1) applies. I find accordingly.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
As set out above, section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the remaining information withheld under section 37. That is to say, the information in question does not relate solely to the applicant; the third party has not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
Public interest
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 FOI 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 record at issue, except in so far as those motives reflect what might be regarded as true public interest factors in favour of release of the record, for example where matters raised in relation to the request may also be regarded as 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 do not apply in this case, 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 record sought effectively to the world at large that outweighs the privacy rights of the third party 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.
I note that the Council did not set out any public interest factors in relation to its consideration of section 37 in either decision or in its submissions to this Office. I also note that the applicant did not refer to the public interest in the release of third party personal information in her correspondence with this Office.
Analysis
It seems to me that it could be argued that the applicant is seeking access to record 10 in pursuit of her complaint, which appears to be a private rather than a public interest. In this regard, I note that in its submissions to this Office, the Council essentially stated that record 10 related specifically to the ongoing conflict between the applicant and the individual concerned and that there was no “broader community interest” in this case. While these comments were made in relation to its reliance on section 29, I am satisfied that they are relevant to my consideration of section 37.
However, it also seems to me that it could be said that there is a public interest in knowing that a local authority is adequately investigating complaints made by Council tenants and enforcing relevant legislation. In this regard, I note that in its submissions to this Office, the Council stated that the matter of the CCTV camera was referred to the Data Protection Commissioner (the DPC) by the applicant. In response to a query from this Office regarding the current status of the complaint, the Council stated that the matter in question had been investigated by the DPC, who had decided that the individual concerned had complied with the relevant guidelines. I understand that the Council considers the matter to be closed and that it has notified the applicant accordingly.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
It seems to me that the public interest in the disclosure of information that serves to allow for scrutiny of the Council’s response to the applicant’s complaint has been served to a certain extent by the release in part of the other records identified by the Council, and by its correspondence with the applicant following the outcome of the DPC’s investigation. While I accept that the release of record 10 would further enhance transparency around the Council’s consideration of the complaint, it seems to me that such additional transparency should not be at the expense of the privacy rights of the individual concerned. In holding this view, I have had regard to the fact that the release of the record sought must be regarded as being effectively, or at least potentially, to the world at large.
I have also considered whether record 10 could be released in part. Section 2 of the Act defines "record" as including "a copy or part" of any thing falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
The Commissioner takes the view that neither the definition of a record under section 2 of the FOI Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
In the circumstances of this case, I am satisfied that the majority of the information contained in record 10 relates to the personal information of an identifiable third party other than the applicant. I am also satisfied that directing the release of parts of the information contained in the record at issue would not be in keeping with the Commissioner's approach to section 18 of the FOI Act, as the remaining information would be misleading.
It seems to me that the Council has sought to strike a balance in this case by releasing as much information as possible to the applicant, while still seeking to protect the privacy rights of the third party concerned. Having regard to content of the record at issue, I can find no public interest factor in favour of releasing the withheld information that outweighs the right to privacy of the third party individual concerned. Accordingly, I find that section 37(5)(a) does not apply and that the Council was justified in refusing access to the remaining information withheld from record 10 under section 37(1) of the FOI Act.
As I have found section 37 to apply, I do not need to consider the Council’s reliance on section 29.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to the remaining information contained in record 10. I find that section 37 of the FOI Act applies and that the public interest, on balance, does not favour its release.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Sandra Murdiff
Investigator