Decision
Mr. Y and The Department of Housing, Local Government and Heritage (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-161660-V0V9R2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161660-V0V9R2
Published on
Whether the Department was justified, under section 37(1) of the Act, in redacting the complainant’s details from the records it released to the applicant relating to a complaint about his property
10 December 2025
In a request dated 26 May 2025, that was refined on 28 May 2025, the applicant sought access to a complaint made to the Department and to the subsequent report made by the ranger who visited his property on foot of the complaint.
On 26 June 2025, the Department part-granted the request and released six records to the applicant, redacting the personal information of the complainant in records 1 and 2, under section 37(1) of the Act. On 17 July 2025, the applicant requested an internal review of the Department’s decision, objecting to the redaction of the complainant’s details. The applicant claimed the complaint was malicious. On 31 July 2025, the Department affirmed its original decision. On 20 August 2025, the applicant applied to this Office for a review of the Department’s decision.
While the Department was invited to make submissions in the matter, it chose not to do so.
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 outlined above, including the applicant’s comments in his application to this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether the Department was justified, under section 37(1) of the FOI Act, in redacting the complainant’s details from the records it released to the applicant.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
The information redacted by the Department from the records at issue in this case comprise the name, address and contact details of the individual who made a report to it about alleged illegal tree-cutting on the applicant’s property. Having examined the records, I am satisfied that the redacted information is personal information relating to an individual other than the applicant and I find that section 37(1) of the Act 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) provides that section 37(1) does not apply if,
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
No argument has been made that any of the circumstances outlined above are relevant in this case, nor do I consider any to apply. While the complaint may concern the applicant, I am satisfied that the information redacted by the Department is personal information of another party. I find, therefore, that section 37(2) does not apply.
Section 37(5)
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 argument has been made in relation to section 37(5)(b) in this case and I am satisfied that it does not apply.
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 in so far 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 may 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, such as under sections 37(2)(a) and 37(8) (which do not apply in this case), 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 individuals 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.
In its decision on the applicant’s request the Department said it considered the following factors in favour of release:
• the public interest in the public knowing how a public body performs its functions
• the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate
• the public interest in members of the public exercising their rights under the FOI Acts.
The Department also said it considered the following factors in favour of withholding the information it redacted:
• the public interest in protecting the right to privacy of members of the public
• the public interest in members of the public being able to communicate in confidence with the Department without fear of disclosure in relation to personal or sensitive matters
• the public interest in the Department being able to perform its functions effectively
• the public interest in safeguarding the flow of information to the Department.
While the applicant did not identify any specific public interest factors in favour of the release of the records at issue, I note that in his correspondence with the Department and with this Office, he argued that the complaint was unwarranted and malicious. He said another unfounded, malicious complaint was made about him and his wife to a separate Department within a week of this one. He said he was seeking access to the complainant's details to try to resolve the situation. While the applicant has, in essence, identified a private interest, I accept that there is a public interest in transparency about how the Department dealt with the complaint made to it. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information within the records that the Department released, and it is not apparent to me that the release of the withheld information at issue would further enhance that transparency to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweighs, on balance, the privacy rights of the complainant. In my view, they do not.
The applicant claims he wishes to access the complainant’s details to resolve what he perceives as a malicious compliant. A requester against whom an allegation has been made may, when seeking access to records relating to the allegation, argue that fair procedures require that he be granted access to the records. The Commissioner takes the view that the recognition of a public interest in promoting procedural fairness through FOI is understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of FOI bodies. In the case of FP v Information Commissioner [2016] IEHC 771 the High Court held that the remedy for any decision arising by reason of unfair procedures lies by way of judicial review. The Commissioner takes the view that the question of whether an applicant should have access to information in order to pursue a remedy or some other form of redress is a matter for the courts. McDermott J stated: “[T]here are extensive legal remedies and procedures available in civil and criminal proceedings to ensure that legally admissible, discoverable or disclosable materials are made available to the parties and to the court in the course of civil and criminal proceedings. In my view, it would require a legislative change to permit the right of access to records as a matter of course to persons claiming to be falsely accused of [a] crime .”
The Commissioner takes the view that even if the information about the requester is not “the truth” or may be regarded as having been made for a malicious purpose, the information may still be personal information. In FP v The Information Commissioner referred to above, McDermott J stated: “This court is not satisfied that the issue of malice as raised ..… is to be regarded as central to or determinative of the issue of access to records. The motivation for or validity or truthfulness of any allegation is a matter to be pursued by other forms of remedy .”
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).
As noted above, the Department released the records it holds to the applicant, withholding only the name and contact details of the complainant. In the circumstances, I do not accept that the public interest in releasing the identity of the complainant outweighs, on balance, the privacy rights of this person. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I am satisfied that the Department was justified in arriving at its decision that the public interest, including the public interest in the confidentiality of personal information, would not be better served by the release of the redacted information to the applicant in this case. In conclusion, therefore, I find that the Department was justified in refusing access, under section 37(1) of the Act, to the complainant’s personal information.
Finally, while I make no finding in this case on the applicability of section 42(m)(i) of the Act, it seems to me that the Department could have considered refusing the identity of the complainant under section 42(m)(i), as the Act does not apply to records described in section 42 of the Act. In essence, section 42(m)(i) provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law, and by doing so it helps to protect the flow of information which public bodies rely on to carry out their functions. In any event, I am satisfied that the information at issue in this case is exempt under section 37(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision under section 37(1) of the FOI Act to redact the complainant’s details from the records it released to the applicant.
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.
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Richard Crowley
Investigator