Decision
Mr. A & Cork City Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-153488-S5T7D5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153488-S5T7D5
Published on
Whether the Council was justified in refusing access to records relating to a particular planning complaint on the basis of sections 29(1) and 32(1) of the FOI Act
3 September 2025
In a request dated 28 June 2024, the applicant sought access to all documents and records concerning a particular planning complaint. He referenced the date of the complaint and the identification number assigned to it. Of note, the applicant is the complainant in question. In a decision dated 19 July 2024, the Council refused the applicant’s request. It said that the documents and records requested form part of an active enforcement file and it refused access under sections 32(1)(a)(i), (ii), (iii) and (iv) of the FOI Act.
On 24 July 2024, the applicant sought an internal review of the decision. He said that the planning complaint in question was submitted to the Council in December 2020. He referenced the statutory powers contained in the Planning and Development Act 2000 and other legislation. He said that such legislation binds the local authority to take certain steps and act within a particular time frame. He submitted that the delay in coming to a finding in relation to the complaint is “so egregious as to be tantamount to a refusal to investigate”. On 14 August 2024, the Council affirmed its original decision to refuse access to the relevant enforcement file. It relied on sections 32(1)(a)(i), (ii) and (iv) of the Act as well as section 29(1). On 6 November 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 applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council originally identified 16 records as coming within the scope of the review, all of which it refused in full.
Upon review of the records, I noted that record 15 includes reference to a particular report which did not appear to have been identified as coming within scope or provided to this Office. In response, the Council acknowledged the reference and said that the report in question was never added to the hard copy enforcement file. It said the record was located following a search of the soft copy folder. It said that the exact status of the report is unclear as it was not signed by the Planning Inspector and does not include the Planners opinion. It said that the current Enforcement Team will review the record and “action as appropriate”. I have heard nothing further from the Council in respect of same. Accordingly, I consider that it has effectively refused access to the additional record (referred to as record 17 hereafter). I will consider this refusal to be on the same basis as the Council has refused access to the other records identified.
Accordingly, this review is concerned with whether the Council was justified in its decision to refuse access to the 17 records at issue on the basis of sections 29(1), 32(1)(a)(i), 32(1)(a)(ii) and 32(1)(a)(iv) of the FOI Act.
Before I address the substantive issues arising, I would like to make certain preliminary comments. First, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Second, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Finally, I note that in his correspondence with the Council and in his application to this Office, the applicant referenced the delay experienced in respect of the FOI body’s processing and investigation of his complaint. 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. The scope of this review is limited to a consideration of whether the Council was justified in respect of its FOI decision-making.
Section 29(1) – deliberations of FOI bodies
Section 29 provides for the refusal of a request if (a) the record concerned contains matters relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purposes of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is met.
In order for section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to that process.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing opinions or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
In correspondence which issued from this Office, the Council was asked to describe the deliberative processes to which the matter or information in the records relates. In response, it said that the planning authority, in its deliberations, considers whether the nature of an alleged breach is a breach of the Planning and Development Act 2000, as amended. It said that the Planning Inspectors Report contains details of deliberations and considerations.
While noting that the Commissioner does not accept that there is a deliberative process where the FOI body’s role is confined to establishing the facts and circumstances of a case and applying a pre-existing principle, I am satisfied that this is not the role of the Council in the circumstances of this case. I note that the Planning and Development Act 2000 provides that a Planning Authority (in this case the Council) shall make such investigation as it considers necessary to enable it to make a decision in respect of relevant enforcement action. Having considered the content and context of the records, I am generally satisfied that they relate to a deliberative process, namely to the Council’s consideration of the complaint and related reports, recommendations and responses with a view to determining whether, and if so what, enforcement action should follow.
As an aside, I would note that there is an arguable case that records 3, 4 and 5 do not contain matter relating to the deliberative process of an FOI body. The records comprise notices and orders and, as such, they effectively represent the outcome of a deliberative process rather than relating to the workings of the process itself. They represent the exercise by the Council of its statutory role under relevant planning legislation and do not, in and of themselves, contain any weighing up or evaluation of available options. However, I also consider that the records relate to stages within a larger deliberative process. In those circumstances, I was willing to accept that section 29(1)(a) applies, although I consider this to be a close call.
In sum, therefore, I find that the records meet the requirements of section 29(1)(a). I must proceed to consider whether the granting of access to the records would be contrary to the public interest, pursuant to section 29(1)(b).
The public interest test at section 29(1)(b) is a strong test, requiring the FOI body to show that the granting of the request would be contrary to the public interest, and is stronger than the public interest test in many other sections of the Act, which generally requires that the public interest would, on balance, be better served by granting than by refusing to grant the request. This Office accepts that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against released under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In its submissions, the Council said that it is considered contrary to proper practice to release records from an open enforcement file, while said file is still under investigation/consideration. It said that granting the request would release documents to the applicant which disclose its internal deliberations as the relevant planning authority and would furthermore release documents to the applicant which contain correspondence with the relevant respondent. It said that as the file is currently open, the release of these documents could be detrimental to any potential enforcement or legal action. In its internal review decision, the Council also referenced the need to preserve confidentiality having regard to the subject matter and circumstances of the communications, that premature release could contaminate the decision-making process and that premature release would impair the integrity and viability of the decision-making process to a significant or substantial degree.
In his application to this Office, the applicant said that he is concerned that the local authority is hiding behind the issue of the file being active in circumstances where the statutory powers under the Planning Acts require a decision to be made within a particular timeframe. He said that there would have been no difficulty in redacting certain details if that was justified in the circumstances. He noted that he has already submitted to the Council that the delay in coming to a decision is so egregious as to amount to a refusal to investigate.
I note that in its submissions to this Office, the Council acknowledged that there was a significant delay in the investigation of enforcement files at the time of the complaint and said that this was due to staff resourcing issues. It said that such issues have now been resolved and staff are working to address outstanding files. It acknowledged that the level of service experienced by the applicant fell short of expectations. However, it said that it was not possible to progress the investigation into the complaint at the time. It again noted that the enforcement file is an open file. As noted above, this Office has no remit to adjudicate on how FOI bodies perform their functions generally.
I have carefully considered the contents of the records and the submissions advanced by the parties. While noting the applicant’s arguments in respect of the delay experienced, I accept that the deliberative process in question is currently ongoing. As stated by the Council, the enforcement file is open. Although I am limited in the extent to which I can describe the contents of the records, it seems to me that while certain matters have been progressed in respect of the complaint received, the deliberations of the relevant planning section remain ongoing. Section 29 is an explicit recognition of the fact that there will be occasions where the disclosure of the details of an FOI body’s deliberations before a decision based on those deliberations has been made would be contrary to the public interest. In my view, this is one such occasion. The deliberative process at issue in this case concerns a complaint made in respect of a third-party commercial entity and the Council’s response to same. Part VIII of the Planning and Development Act 2000 concerns enforcement and details the powers and functions of planning authorities (in this case the Council).
Generally speaking, it is in the public interest to ensure that appropriate decisions are made by FOI bodies. I accept that the Council must have the necessary time and space to engage in deliberative processes that enable proper consideration of all relevant issues in order to achieve such an outcome. It seems to me that, in general, undue or unreasonable interference with those processes would be contrary to the public interest. I accept that the release of an enforcement file before a final determination has been made could impair the Council’s process in this regard. Parties to the investigation as well as third parties would become aware of the matters under consideration and the Council’s approach to same and I accept that the potential for interference exists. I also consider that the release of information concerning a third party in circumstances where certain decisions and determinations have not yet been made could unduly impact that entity. Overall, I am satisfied that it would be contrary to the public interest to direct the release of records that could have a negative impact on the ongoing deliberative process being undertaken by the Council.
However, I consider that the Council’s blanket refusal of all the records contained within the relevant file under section 29 was not justified. A number of the records comprise correspondence between the Council and the applicant himself. One of the records at issue is a copy of the complaint submitted by the applicant. I do not accept that the release of such records would have any impact on the deliberative processes at issue. In such circumstances, I fail to see how the FOI body could reasonably argue that the release of records 1, 6, 13 and 16 would be contrary to the public interest. Furthermore, records 3, 4 and 5 comprise certain letters and orders issued to the party subject to the complaint. While I am limited in the extent to which I can describe the contents of the records I issue, I believe I must note that record 6 comprises a copy of correspondence sent from the Council to the applicant in which the applicant is notified that notices such as those at records 4 and 5 have issued. Record 3 comprises a requirement to provide certain information. I note that according to the Office of the Planning Regulator, planning authorities should inform complainants of action being taken in respect of their complaint. Given the content and context of the records and the fact that the applicant has already been notified of relevant steps taken by the Council, I do not accept that the release of records 3, 4 and 5 would be contrary to the public interest. Accordingly, I find that section 29(1) does not apply to records 1, 3, 4, 5, 6, 13 and 16.
On the other hand, I am satisfied that the remaining records relate to a relevant deliberative process and that their contents and context are such that release at this time would be contrary to the public interest. Accordingly, I find that section 29(1) applies to the remaining records.
Section 29(2) of the FOI Act provides that section 29(1) does not apply if and in so far as the record contains any or all of the following:
a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
b) factual information;
c) the reasons for the making of a decision by an FOI body;
d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
Neither of the parties to this review made submissions in respect of the application of section 29(2). Notwithstanding the lack of submissions, I have considered the records at issue. I am satisfied that subsections (a) through (d) do not apply. In respect of subsection (e), I note that one of the records within scope comprises an inspector’s report. Even if I was to accept that such a report was prepared by a scientific or technical expert, I am also satisfied that the report was used or commissioned for the purposes of a decision of the Council in respect of the Planning and Development Act 2000. Accordingly, I am satisfied that subsection (e) does not dis-apply section 29(1) in respect of the relevant record.
Section 32(1)(a) – law enforcement and public safety
As I have found that section 29(1) serves to exempt a number of records from release, I am only required to consider section 32 in respect of records 1, 3, 4, 5, 6, 13 and 16. Section 32(1)(a) is a harm-based exemption. It applies where access to the record concerned could reasonably be expected to prejudice or impair the matters specified in relevant subsections. In this case, the Council has relied on subsections (i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid, (ii) the enforcement of, compliance with or administration of any law, and (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.
In respect of each of the above subsections, the Council said that release of the documents while the file is still open may be detrimental to any potential enforcement or legal action. It again said that granting the request would release documents to the applicant which may contain internal deliberations of the planning authority and furthermore release documents to the applicant which contain correspondence with the respondent.
As noted above, the records remaining at issue comprise the complaint submitted by the applicant, correspondence between the applicant and the Council and certain notices and orders issued which comprise requests for information or which the applicant has been notified of. I fail to see how the release of such records could reasonably be expected to result in the harms envisaged by section 32(1)(a). I find that the exemption does not apply to exempt records 1, 3, 4, 5, 6, 13 and 16.
In sum, I find that sections 29(1) and 32(1)(a) do not serve to exempt records 1, 3, 4, 5, 6, 13 and 16. I direct the release of the above records subject to the redaction of the names of third-party individuals contained therein. I am satisfied that such names comprise personal information for the purposes of section 37 of the FOI Act and that the public interest in release does not outweigh the public interest in the right to privacy of the relevant individuals.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in refusing access to a number of the records on the basis of section 29(1). I find that it was not justified in refusing access to seven records on the basis of sections 29(1) or 32(1)(a) and I direct the release of same, subject to the redaction of personal information relating to third parties contained therein.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
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Alison Connolly
Investigator