Decision
Ms X and Dún Laoghaire-Rathdown County Council
From Office of the Information Commissioner (OIC)
Case number: 130174
Published on
From Office of the Information Commissioner (OIC)
Case number: 130174
Published on
Whether the Council was justified in its decision to refuse access to records and to make redactions to records under sections 22(1)(a) and 28(1) of the FOI Act, on the basis that the records are subject to legal professional privilege and contain personal information relating to a third party.
Review application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the "FOI Act")
25 June 2014
The applicant, by way of letter dated 29 February 2013 [sic] and received by the Council on 4 March 2013, submitted a Freedom of Information request for access to seven categories of records, all of which generally relate to planning, building control and compliance matters for a property adjoining to that of the applicant. By way of letter dated 26 March 2013, the Council released some relevant records to her, but also refused access to some others under sections 22, 26 and 28 of the FOI Act. Planning records were not released by the Council in accordance with section 46(2) of the FOI Act, as planning files are available for inspection by members of the public and are therefore not subject to the Act. The applicant sought an internal review of this decision by way of letter dated 20 April 2013. The internal reviewer upheld the decision, and also released further records to the applicant that had been located subsequent to her initial request. The outcome of the internal review was communicated to the applicant by way of letter dated 21 May, 2013. On 5 July 2013, the applicant sought a review by this Office of the Council's decision.
I note that Mr Niall Mulligan of this Office has informed the applicant that, in his view, the Council's decision was justified in relation to four records coming under request. The applicant has indicated, by way of letter 30 May 2014 that she does not accept this view, and I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Council's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Council. I have also had regard to the provisions of the FOI Act.
The Council identified 61 records in four schedules as coming within the scope of the applicant's FOI request. It granted access to all except five of these records, being those set out at Schedule 2, records 6, 7, 10 and 35, Schedule 3, record 1.
The applicant was furnished with redacted copies of the records set out at Schedule 2, records 13, 25, 28, and 32; and Schedule 4, records 1,3,5,9,10,11 and 12. The Council purported to make these redactions pursuant to sections 26 and 28 of the Act. The applicant, in her letter dated 30 May 2014, indicated that she is satisfied to receive records subject to redaction of "names and addresses". As the redactions to Schedule 2, record 13 and Schedule 4, records 1,3,5,9,10,11 and 12 related to such information, I do not intend to consider these records for the purposes of this review, given that the applicant has stated that she is not seeking this information. Redactions to records 25, 28 and 32 are considered below.
Regarding four of the five records that were withheld, Mr Niall Mulligan of this Office contacted the Council stating his view that the claim to an exemption under section 22(1)(a) of the FOI Act that had been raised in relation to these was unsustainable. The Council accepted his view in relation to three of the records (Schedule 2, records 6 and 35; Schedule 3, record 1) and these records were released to the applicant. In relation to the fourth, set out in the Schedule of Records at Schedule 2, record 10, ("Record 2.10") the Council claimed that the exemption contained at section 28 of the FOI Act, relating to personal information of a third party, should be applied. Therefore, this record remains at issue in this review.
Mr Mulligan was of the view that the legal professional privilege exemption under section 22(1)(a) of the FOI Act had been applied correctly in respect of the record set out at Schedule 2, record 7 of the Schedule of Records ("Record 2.7"). It is not apparent from the applicant's submissions that she accepts his view in that regard, and it is therefore necessary for me to consider the position in relation to Record 2.7 in this decision.
In her submissions to this Office, the applicant has raised issues about the Council's performance of its role in relation to investigations and enforcement under the Building Control Acts, and has emphasised the reasons why she seeks the records in question. I should point out that it is outside the scope of the Commissioner's role to adjudicate on how public bodies perform their functions generally.
This review is concerned solely with the questions of whether the Council was justified in its decision to refuse access to Record 2.7 and Record 2.10, on the basis that the former is subject to legal professional privilege and is thus exempt under section 22(1)(a) of the FOI Act, and that the latter consists of personal information relating to a third party and is thus exempt under section 28 of the Act, and of whether the redactions to Schedule 2, records 25, 28 and 32 were justified, on the basis that they concern personal information relating to a third party, within the meaning of section 28 of the Act.
Record 2.7
This record consists of minutes of a meeting between the Council and its solicitors. Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:-
Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.
It is clear that Record 2.7 relates to a meeting where the Council sought and received legal advice from its solicitor, acting in a professional capacity. I am satisfied that the first limb of legal professional privilege, advice privilege, applies to this record and that the Council correctly applied the exemption at section 22(1)(a). I find accordingly.
Record 2.10
This record relates to the Council's interactions with a third party in the performance of its functions. The Council initially refused access to this record under section 26 of the FOI Act. However, I believe that section 28 of the Act is a more appropriate appropriate provision under which the records should be considered. I note that the Council, in correspondence with Mr Mulligan, accepted this position.
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information. Section 28 (5B) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected.
While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless under section 28(5) of the FOI Act:
(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 information would be to the benefit of the person to whom the information relates.
Personal information is defined in section 2 of the FOI Act as information about an "identifiable individual". That section details twelve specific categories of information which are included in the definition of personal information, including "(xi) information relating to the property of the individual (including the nature of the individual's title to any property)".
Having considered its contents I am satisfied that Record 2.10 relates to the property of an identifiable individual, other than the applicant, and that it therefore falls within the definition of "personal information" contained in section 2 of the FOI Act and is therefore exempt under section 28(1) of the Act. I find accordingly.
Having so found, the next question I must consider is whether or not that personal information should be released to the applicant. In that regard, the applicant made detailed submissions as to why, in her view, the public interest in this case should favour the release of that record.
I refer to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"] in relation to the public interest. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. While the comments are obiter, Fennelly J noted that the request in that case was "by a private individual for a private purpose. It was not made in the public interest." Macken J also commented that "any "public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
In this case, the applicant seeks to invoke the public interest in the context of planning and building control matters, but in the particular context of a private dispute between the applicant and a third party. The applicant compares her situation to the well-known Priory Hall case, "except not on the same scale". In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request (section 8(4) of the FOI Act refers). However, this is not necessarily the case where the public interest becomes a consideration. As can be seen from the comments in the Supreme Court in the Rotunda case, there is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests may overlap, however. It seems to me that the applicant is primarily seeking information for her own private purposes. To the extent that the applicant's private interest overlaps with the public interest in this case, it appears that the public interest concerned is the public interest in openness, transparency and accountability.
I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness and transparency in how a public body performs its functions. I accept that there is a public interest in the disclosure of information which will allow for increased transparency and accountability in how the Council deals with planning and building control matters.
On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 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") recognise this public interest. The right to privacy also has a constitutional dimension. Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy. In my view the public interest in protecting the right to privacy is a strong public interest.
Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.
Accordingly, I find that the Council was justified in refusing access to the Record 2.10 under section 28(1) of the FOI Act.
Redacted Records
The records set out at Schedule 2, records 25, 28, and 32 were furnished to the applicant in redacted form. The Council raised the exemptions contained at sections 26 and 28 of the FOI Act in this regard.
The redaction to Schedule 2, record 25 relates to the mobile phone number of a third party, which clearly meets the definition of "personal information" contained at section 2 of the FOI Act, and the exemption contained at section 28(1) of the Act. I can see no basis for this information being released in the public interest, and I am therefore of the view that the Council correctly applied the exemption in making this redaction. I find accordingly.
In relation to Schedule 2, records 28 and 32, these records both contain redactions of the names of third parties. I understand that the applicant does not take issue with redactions of this nature. The remaining redactions to these records concern opinions about a third party and information relating to the property of a third party. I find that information of this kind falls within the definition of "personal information" contained at section 2 of the FOI Act and is thus within the scope of the exemption contained at section 28(1) of the Act. Having so found, it is again necessary to apply the public interest test, contained at section 28(5)(a) of the FOI Act. I have already, in considering the position with regard to Record 2.10, set out in detail my reasoning in relation to the application of the public interest test in this case. The same considerations apply in relation to the redactions to Schedule 2, records 28 and 32. On this basis, I am satisfied that section 28(5)(a) of the Act does not apply. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Council to refuse access to Records 2.7 and 2.10, and to release Schedule 2, records 25, 28, and 32 subject to redactions.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator