Decision
Ms. X and Longford County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150872-Z7R8V1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150872-Z7R8V1
Published on
Whether the Council was justified in refusing access to records relating to a mortgage granted to a certain individual under section 37 of the FOI Act
28 February 2025
In a request dated 1 June 2024, the applicant sought access to:
1) All written correspondence including letters, emails, faxes, memos, and messages on social messaging apps such as WhatsApp, between the Council and (a named individual) and or his representatives pertaining to a mortgage granted to purchase a property.
2) All internal written correspondence including letters, emails, faxes, memos, reports and messaging on social messaging apps such as WhatsApp, pertaining to a mortgage granted to (the same individual).
In a decision dated 28 June 2024, the Council refused access to the requested records under section 37(1) of the FOI Act. On 11 July 2024, the applicant requested an internal review of the Council’s decision. On 25 July 2024, the Council issued its internal review decision in which it affirmed its original decision. On 30 July 2024, 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 submissions made by the Council, communications with the applicant, and to the above correspondence between the parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council located ten files of records which it says are relevant to the applicant’s request. The files are described as housing loan/shared ownership records. These files cover the years 1999 to 2024.
The scope of this review is confined to whether the Council was justified in refusing access to the records contained in files 1-10 under section 37(1) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
The release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.
Section 37(1) - Personal Information
The Council has refused access to the records contained in files 1-10 under section 37(1) of the FOI Act. Section 37 is a mandatory exemption provision and it provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential.
Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (ii) information relating to the financial affairs of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).
I am limited in the description of the records that I can give as a result of section 25(3) of the FOI Act. I can however provide a general overview of the type of information at issue. The records include an application to the Council for a shared ownership loan, records relating to the processing and approval of the loan application and details of payments made under the loan. The records contain names and other information which could reveal the identities of individuals, together with details of the financial affairs of those individuals including bank statements, payslips and P60’s. The records also contain information relating to property interests of identifiable individuals including the nature of their title to property, the location of their property, the cost of constructing their home etc. I find that the information at issue in this case comprises of the personal information of identifiable individuals and that section 37(1) therefore applies. However, section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply 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.
In the circumstances of the case, I am satisfied that none of the provisions of section 37(2) serve to dis-apply section 37(1) in this case.
Section 37(5) The Public Interest
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. No evidence has been put forward, and it is not evident to me from the content of the records, that section 37(5)(b) applies.
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 insofar 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 could 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, 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 individual 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.
The applicant states that she is appealing the Council's refusal to release information on the basis that to release this information would not be in the public interest. She states that she sought correspondence relating to a mortgage granted by the Council to someone who was elected to public office. She states that this mortgage was granted before they were elected, and in the run up to the elections she had submitted press queries about this. She states however, that the Council would not provide any useful response even though potential voters were entitled to be aware of this information in order to make an informed decision about how to cast their vote. The applicant states that the mortgage involves the spending of public money and it is in the public interest to know how public money is used and possibly misused. She states that it is also in the public interest to know how public representatives use public money granted to them even before they were elected. Finally, the applicant states that it is also in the public interest to know whether public representatives have possibly misused and or abused public funds.
The Council states that the records contain the personal information of a couple who made an application to the Council for a Housing Loan under the Shared Ownership Scheme. It states that the couple met the necessary eligibility criteria for a local authority Housing Loan and were approved for same. It states that at the time of the application, neither party was elected to public office. The Council states that the records show that the couple did accrue arrears on the loan over a number of years, however they did make payments on the loan and engaged with the Council in an effort to clear the arrears. The Council states that the individuals have been subject to the same level of enforcement as any other Housing Loan customer would under the same circumstances and are entitled to the same level of privacy as any other Housing Loan customer. The Council states that taking the Supreme Court ruling in Enet and applying it to the facts of this case, the only way it can envisage the release of the records would be where the release would reveal some kind of fraudulent behaviour or misuse of public funds. The Council states that it is absolutely satisfied that this is not the case here. It states that the couple applied for and were granted a housing loan, as per its normal rules and regulations. It acknowledges that there were some issues with repayments in the past, as is evidenced by the records, it states that this matter is now resolved and the loan is being repaid as per the agreement.
In my view, there is a significant public interest in openness, transparency and accountability in public bodies, particularly where the use of public funds is concerned. It is also the case that, in certain circumstances, disclosure serves as a significant aid to ensuring the effective oversight of public expenditure, to ensuring the public obtains value for money, and in preventing the waste or misuse of public funds.
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. 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.
I accept that releasing these records would allow for transparency in relation to the use of public funds. I also accept that release of these records would allow for scrutiny of how the Council carries out its functions in relation to the shared ownership scheme and in particular how it carries out its functions in ensuring that public monies provided to individuals are repaid in full so that there is no waste of public funds. However, this does not mean that there should be no protection of the privacy rights of the individual’s involved. The Courts have found that information relating to a person’s home and family life is likely to attract a high degree of constitutional protection. In this case the records contain details of a mortgage taken many years before one of the individuals mentioned in the records was elected to public office and the records relate to that individual’s home and include information such as statements of household expenditure. It seems to me, that the weight to be afforded to the privacy interests in this particular case is high, and is at the core of the right to privacy. I have examined the records carefully and I accept the Council’s submission that the records do not reveal any fraudulent behaviour or misuse of public funds. In my view, the protection of privacy rights outweighs the public interest in disclosure of the information in records at issue. I find therefore that section 37(5)(a) does not apply in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in refusing the applicant’s request for access to the mortgage records under section 37(1) of the FOI Act.
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.
Jim Stokes
Investigator