Decision
Mr Ken Foxe, Right to Know CLG and Dún Laoghaire Rathdown County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-128360-Q4T5Y0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-128360-Q4T5Y0
Published on
Whether the Council was justified in refusing access to records relating to the presence of billboards on Council Land in Sandyford.
24 May 2023
In a request dated 28 June 2022, the applicant sought access to copies of any records held referring or relating to the presence of three billboards on council-owned land in Sandyford. He specified that the request was to cover the period from 1 January 2017 to the date of receipt of the request. In response, the Council informed the applicant that processing the request would significantly disrupt work and unless the scope of the request was refined, it was likely to be refused. It suggested that he may wish to seek access to the records already collated in response to a previous FOI request on the same matter. It said it had collated records and emails that relate to the issue and would be happy to consider these in response to the request and redacted where appropriate. Alternatively, it asked the applicant to consider significantly narrowing the scope of his request, particularly the nature of the records and the date parameters.
On 7 July 2022, the applicant said he was happy to confine the request to those records already released and all records as described in the original request created in the period since the date those records were first sought. On 13 July 2022, the Council sought further clarification of the request. On the same date, the applicant explained that he wanted copies of the original records released with what he described as “the incorrect Section 37 exemptions” removed. He said he also wanted copies of all records held referring or relating to the billboards in the time period since the previous request was first submitted.
On 19 July 2022, the Council notified the applicant that it estimated the cost of searching for, retrieving, and copying (SRC) relevant records to be €250 based on a resource requirement of 12.5 hours, and it requested payment of a deposit of €125. It asked the applicant if he wished to make possible amendments to his request which might reduce or eliminate the deposit and/or the SRC fee. It also explained that a separate course open to him was to seek a review of the decision to impose the stated deposit and fee. On 20 July 2022, the applicant informed the Council that he was happy to confine the second part of his request (i.e. the request for records created since the previous request was first submitted) to the email accounts/mobile phones of a named Council official and the CEO of the Council.
On 20 July 2022, the Council informed the applicant that the refinement suggested would not affect the SRC fee. It said that if and when the request was produced and less time was needed as per its estimate, he would be refunded accordingly. In response, the applicant argued that the Council’s procedure was incorrect. He referred to the section of the FOI Act relating to fees that he described as obliging a public body “to provide reasonable assistance to a requester who is agreeable to refining their request, and provide a revised search and retrieval estimate then”.
It appears that the Council did not pursue its request for a deposit and proceeded to process the request, as clarified by the applicant on 13 July 2022, without charging an SRC fee. In a decision dated 22 August 2022, the Council released copies of the 27 records that had been released on foot of the first request, many with redactions. It refused to release unredacted copies of the records released on foot of the first request, pursuant to section 37(1) of the Act. It also refused access to any additional records created since the first request under section 15(1)(a) on the ground that no further relevant records exist.
On 23 August 2023, the applicant sought an internal review of the Council’s decision. He argued that section 37 could not apply to records relating to an organisation or company. He also said he did not find it credible that there were no further records whatsoever relating to this matter given the billboards were removed in the time period covered by the request.
Following internal review, the Council affirmed its original decision on the matter. It provided the applicant with a copy of an internal email from the internal reviewer, wherein the internal reviewer appears to indicate that as the records released on foot of the first request were redacted and the applicant confined his request to those records already released, the records should be released (presumably as redacted). The email makes no reference to the applicant’s argument that the records were wrongly redacted. On the matter of whether further relevant records exist, the internal reviewer indicated that the decision to refuse access under section 15(1)(a) on the ground that there were no new records since the applicant had first made his request on 28 June 2022.
On 16 September 2022, the applicant applied to this Office for a review of the Council’s decision. He argued that the Council had wrongly redacted information under section 37. He also argued that further records coming within the scope of the second part of his request should exist. Among other things, he said he submitted a media query to the Council with regard to the matter and that no records relating to this media query were found during the search and retrieval process.
The applicant also expressed concerns about how the Council handled his request. He argued that the Council first sought to impose fees for what he described as “largely a re-release of existing records … and a request for records covering a short period of time following that”. He said that while he subsequently agreed to a refinement of the request to cover only re-release of existing records and any further records created during a short period of time after their release, the Council sought to impose search and retrieval fees for the refined request. He said that when he “appealed the imposition of fees”, the Council proceeded with the request without charging SRC fees. He suggested that this was “a clear and blatant abuse of the FOI fee system in an attempt to block the request, when search and retrieval fees should never have arisen given what was being sought and what had previously been released”.
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 between the applicant and the Council as described above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the relevant records at issue. I have decided to conclude this review by way of a formal, binding decision.
Following a request by this Office during the course of the review for submissions on the matter, the Council clarified that the first request for records relating to the billboard was received on 17 April 2022. It said the same schedule of 27 records was provided to the applicant and that no additional records between 17 April 2022 and 28 June 2022, when the applicant first submitted his request, had been located. It said that since the applicant had sought a review, one additional record created between 17 April 2022 and 28 June 2022 had been located and was released to the applicant, comprising correspondence relating to the applicant’s media query he had referenced in his application for review.
The Council also reconsidered its position in respect of the redactions that had been applied to the 27 records scheduled. It released updated versions of the records with certain redactions removed and provided the applicant with an updated schedule, which included the additional record located during the review. Although the Council marked two of the records as partially granted, there was still a number of redactions to the names of employees in third parties. Following contact with the applicant, he has confirmed that he is not seeking that information. Accordingly, I will not consider it further. The Investigating Officer also clarified whether the applicant was satisfied with the additional information released. In response, the applicant said he required a formal decision on the case, in light of the manner in which the Council handled the request. Subsequently, the applicant also informed this Office that he was not satisfied that all relevant records coming within the scope of his request had been located.
Accordingly, this review is concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records other than those already released, on the ground that no further relevant records exist or can be found, and whether it was justified in its decision to redact certain information from records 1 and 6 under section 37(1) of the FOI Act.
As I have outlined above, the applicant argued that the Council’s attempts to charge SRC fees in this case was “a clear and blatant abuse of the FOI fee system in an attempt to block the request, when search and retrieval fees should never have arisen given what was being sought and what had previously been released”.
While I accept that the applicant’s refined request included a request for additional records for a specified period other than those already identified in the course of processing a previous request, it is difficult to see, on its face, how the Council could reasonably have estimated that it would take 12.5 hours to search for and retrieve relevant records in circumstances where almost all of the records released in this case were apparently readily to hand. Moreover, at no stage did the Council explain to the applicant why it subsequently decided to process the request without charging SRC fees at all. Nevertheless, I note that the Council informed the applicant that it was open to him to seek a review of the decision to impose the stated deposit and fee and that he did not do so. As such, the question of whether the Council would have been in a position to justify its SRC estimate has not been considered in this review, nor do I consider it appropriate to comment on the appropriateness of the original decision to impose SRC fees, other than to note that the charging of SRC fees in relevant circumstances is mandatory.
I also note that the applicant expressed concerns following the Council’s correspondence wherein it informed him that the refinement he suggested in his email of 20 July 2022 would not affect the SRC fee. He argued that the Council’s procedure was incorrect and he referenced the section of the Act obliging an FOI body to provide reasonable assistance to a requester to amend the request to eliminate or reduce the SRC fee.
The relevant section of the Act (section 27(7)) provides that where SRC fees apply, the FOI body must, if so requested, assist the requester in amending the request in order to reduce or eliminate the SRC fee. I am unclear as to why the applicant considers the process the Council followed at that stage was incorrect. He had suggested an amendment and in response, the Council had explained that the amendment suggested did not affect the SRC fee. I accept that it could have sought to offer more specific advice as to how the request might be further refined and did not did so, but on the other hand, it does not appear that the applicant sought further assistance of the Council on the matter. Instead, as I have outlined above, the council subsequently decided to process the request without charging an SRC fee.
I would also like to comment on the fact that at internal review stage, the Council failed to engage with the applicant’s arguments in his application for internal review in respect of the manner in which it had originally redacted the records at issue under section 37. In his application for internal review, he argued that section 37 could not apply records relating to an organisation or company. However, it appears that the internal reviewer did not have regard to those arguments and instead simply affirmed the decision to release the redacted records, seemingly on the basis that they were the records sought in the request. This was clearly not the case. The applicant had clarified that he wanted copies of the original records released with what he described as “the incorrect Section 37 exemptions” removed.
Moreover, in circumstances where the Council subsequently decided to remove redactions that had been incorrectly applied, it is clear that this matter need not have been brought to this Office for review in the first place, had a proper internal review taken place. As the Council knows, detailed supporting documentation is available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform. I urge the Council to take appropriate measures to ensure that all of its decision makers are familiar with the relevant guidance materials and that they are used when processing requests, so that all future requests are dealt with in compliance with the requirements of the Act.
Section 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The applicant argued that additional relevant records should exist. In his application for review, a copy of which was provided to the Council during the review in accordance with the requirements of the Act, he said that at least one, if not two, local councillors had been asking the Council about the matter of the billboards and he suggested there should be correspondence of that nature. Moreover, he said that in the time between his submission of the media query and the planned publication of a story, the billboards in question were removed from Council land after more than twenty years. He suggested this was not a coincidence and argued that there must be some records relating to how this situation was arrived at.
During the course of this review, the Council was offered three opportunities to make submissions on the searches carried out. Each time, the Council failed to give adequate details. In its initial submissions of 31 January 2023, it provided no details of the searches undertaken other than to say that no relevant records were found other than the record located following receipt of the applicant’s correspondence with this Office. Subsequently, on 4 May 2023, the Council forwarded a response from the decision maker who said he had consulted with the official who had managed the issue and arranged for the removal of the billboards as to where any relevant records might be stored. He said that as the information sought had been subject to a recent previous, recent request, they were already familiar with the scope and source of information available. He said the information was contained in e-mail correspondence, telephone correspondence which is not recorded, and a specified letter. He said he identified all staff (presently employed and retired) who would have retained records in email format and who had had an involvement and provided details of eight email accounts. He said key words were also used when searching the emails i.e. a named Hospital and billboards. He said all documentation was searched for and attained and was submitted to the FOI section.
On 11 May 2023, further information was sought from the Council. Specifically, the Council were asked to address why this Office was not provided with a copy of the original FOI request which was submitted on 17 April 2022. It was also asked to address the applicant’s claim that the billboards were removed during the extended time period covered by his request and why no records in relation to this had been identified/scheduled. It was asked why searches had not been carried out in the press office despite the applicant having submitted a press query. Finally, the Council was asked to address the applicant’s assertion that two Councillors had been in touch with it, in relation to the matter.
In response the Council provided a copy of the original request and clarified that the decision to remove the billboards was made in Q2/Q3 of 2022, and that they were removed on 24 July 2022. It noted that the decision was made by the Property and Estates Department in conjunction with the Council’s Corporate Estates Committee.
It also noted that the Property Management section were being contacted regularly with queries on why Billboards were being left in situ without agreement, consent or permission. It said that the Roads Safety Authority had reported them as a potential hazard to traffic, so the Council as land owners for the property had a duty of care to remove them under health and safety grounds due to their location. The Council noted that the decision would have been recorded across a number of area committees following their removal in July 2022.
In relation to the queries regarding Councillors, the Council pointed out that there is correspondence in the FOI from one specific councillor already and claim that there is no other correspondence in relation to this in the time-frame from April - July 2022. It clarified that there are some records in relation to Billboards from a meeting in October 2022, which is outside the time frame of the request and would be public records. The Council also clarified that additional searches were taken out to cover the additional time period covered by the second request.
The Council for the second time provided additional records which had been missed during the course of their searches, this was after it was asked whether it had conducted searches in the press office, a total of eight emails were then provided to the Investigating Officer.
In these circumstances, I cannot find that the Council took all reasonable steps to search for relevant records, as required by section 15(1)(a). While the Council have stated that the decision to remove the billboards was taken by Property Management in consultation with the Corporate Estates Committee, they have provided no information as to who in the Department made the decision, how it was communicated or where the searches were carried out in those Departments/who was directly consulted to carry out these searches, despite being directly asked.
The Council have been provided with a number of opportunities over the course of this review to provide adequate information in response to direct questions concerning these matters. In addition, twice when the Council were contacted for submissions or requested to search specific locations they identified further records, which they did not find during the course of their original searches. In addition, the Council have pointed out that the Road Safety Authority had reported the billboards, however, there is no correspondence is relation to this report which has been scheduled or released, and no indication that the Council carried out searches for same. I am also cognisant that there are a number of people named a number of times on the emails which the Council originally released, whose names were not provided as people who were contacted to carry out searches of their own records.
It seems likely to me that there could be further relevant records which exist in relation to this matter have not been uncovered and on that basis, I must remit the matter to the Council and instruct that they carry out fresh detailed searches across all relevant areas identified such as the press office and committee/property management sections.
Should the applicant be unhappy with the Council’s fresh decision on the request, the usual rights of internal review and application for review by this Office will apply. I urge the Council to ensure that all of its FOI decision-makers are familiar with the relevant requirements for search cases referenced above to avoid this scenario arising again in future FOI requests.
Section 37
The Council has refused access to information in records 1 and 6 of the original records scheduled and partially granted. The records were refused on the basis of section 37(1).
Section 37(1) 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 relating to an individual or individuals 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the foregoing definition.
The information redacted from the relevant records relates to email addresses, addresses/eircodes and names of members of the public who submitted queries to the Council in respect of the billboards. Having reviewed the relevant records, I am satisfied that the information redacted in these records relate to the personal information of individuals other than the applicant and that section 37(1) applies to this information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.
Section 37(5) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
On the matter of the applicability of section 37(5)(a), 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.
Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates.
I find therefore that the Council was justified, under section 37(1) of the Act in refusing access to information on pages 1 and 6 of the records released during the course of this review.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was justified in refusing access to information in records 1 and 6, as outlined above, under section 37(1) of the Act. I find that the Council has not carried out adequate searches under section 15(1)(a). I direct the Council to undertake fresh searches for additional records relevant to the applicant’s request.
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.
Rachael Lord, Investigator