Decision
Ms X and Fingal County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-126675-Y6H5X3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-126675-Y6H5X3
Published on
Whether the Council was justified in redacting, under section 37(1) of the FOI Act, certain parts of a Planning Inspector’s Report on the ground that the release of the redacted parts of the report would involve the disclosure of third party personal information
8 November 2022
In a request dated 26 April 2022, the applicant and a second individual (the requesters) sought access to a copy of the Planning Inspector's Report into a complaint they had submitted to the Council about an alleged planning enforcement breach. In its decision dated 23 May 2022, the Council refused the request under sections 35(1)(a) and 37 of the FOI Act. The requesters sought an internal review of that decision on 7 June 2022. They suggested that a redacted copy of the report could be released with the redaction of confidential and/or third party personal information.
On 5 July 2022, the Council varied its original decision and granted partial access to the record sought, with redactions made under section 37 on the ground that the report contains personal information. On 26 July 2022, the applicant applied to this Office for a review of the Council’s decision.
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 comments made by the applicant in her application for review, and the submissions made by the Council to this Office. I have also had regard to the correspondence between the applicant and the Council as outlined above, and to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, the Council said that the Inspector’s report comprises pages 1, 2, and 14 to 17 of the record released. It said pages 3 to 13, comprising third party correspondence, was embedded in the Planning Inspector’s report, in what it described as a clerical error. It argued that the document in question is outside of the scope of what was requested, as it doesn’t form part of the Planning Inspector’s report, and it said it was therefore not provided to the requester.
While I have some sympathy for the Council’s position, the fact remains that the record identified as coming within the scope of the request comprises a 17-page document that is held by the Council and is relevant, in my view, to the contents of the remaining pages of the record. While cognisant of the requirements of section 25(3), that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt, I do not believe that I would be in breach of those requirements by providing the following general description of pages 3 to 13. They comprise correspondence submitted to the Council by representatives of the individuals against whom the complaint of alleged non-compliance with a planning permission was made, in response to a warning letter the Council issued. I find, on balance, that it is not appropriate to exclude pages 3 to 13 from the scope of this review.
Moreover, in its submissions, the Council said that having reviewed the record again, the second last sentence on page 14 to which redactions were made was a comment made by the Planning Inspector and can be released. Therefore, I have excluded those redactions from the scope of this review. If the Council has not already released the relevant part, I expect it to do so as soon as it receives this decision.
Accordingly, this review is concerned solely with whether the Council was justified in redacting, under section 37(1) of the FOI Act, certain information from page 1, the remaining redactions from page 14, and pages 3 to 13 in their entirety.
In her application for review to this Office, I note that the applicant stated that the contents of the redacted pages are essential for her to understand the full reasoning behind the Council's decision not to take enforcement action for a possible breach of a planning permission. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address the applicability of the public interest in this case below.
I would also draw attention to section 18(1) of the Act, which 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 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). I take the view that neither the definition of a record under section 2 of the 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, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.
Section 37(1) of the FO Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. The section does not apply where the information involved relates 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). In essence, 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 fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
Having examined the redacted parts of the record at issue, including the correspondence that comprises pages 3 to 13, I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant, or joint personal information of the applicant and other individuals which is inextricably linked, and that section 37(1) applies.
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.
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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.
In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the eNet 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.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is 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 may be put.
As I have outlined above, the applicant argued that the contents of the redacted pages are essential for her to understand the full reasoning behind the Council's decision not to take enforcement action for a possible breach of a planning permission. I do not agree. In my view, the Inspector’s findings, as released on page 14 of the record, clearly explain his reasons for recommending the closure of the enforcement file. It seems to me that the Council attempted to strike a balance by releasing as much of the record as it could to explain the reasons for the position taken whilst seeking, at the same time, to protect the privacy rights of the third parties concerned. Having examined the record at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Council was justified in refusing access, under section 37(1) of the FOI Act, to the withheld parts of the Planning Inspector’s Report.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access, under section 37(1) of the FOI Act, to the withheld information contained within a Planning Inspector’s Report.
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.
Stephen Rafferty, Senior Investigator