Decision
Ms K and Donegal County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120332
Published on
From Office of the Information Commissioner (OIC)
Case number: 120332
Published on
The Council's initial decision on the request (made further to section 29 of the FOI Act) was that records pertaining to a pre-planning enquiry, made to the Council by the applicant, while exempt under section 28 of the FOI Act, should be released in the public interest. However, in the course of this Office's review, the Council reconsidered its position, and accepted that the details concerned should not be released in the public interest. This Office's review is concerned with the sole issue of whether or not the Council's revised position in this regard is justified
30 January 2014
A requester applied to the Council under the FOI Act, seeking the release of 21 files pertaining to pre-planning matters, i.e. enquiries made by persons seeking relevant information from the Council before deciding whether to make formal planning applications. The request was received by the Council on 20 September 2012. Although considering the file to contain records which comprised confidential information, the Council initially formed the view that the public interest in releasing the applicant's file outweighed the public interest in upholding her right to privacy. The applicant was notified of the Council's view in accordance with section 29 of the FOI Act, and was given an opportunity to make a submission to the Council on the matter. Section 29 provides that where a third party's confidential, commercially sensitive or personal information is being considered for release in response to an FOI request, the third party in question must be notified and given an opportunity to make submission in relation to the FOI request.
Following receipt of a submission made by the third party (the applicant in relation to this FOI review) dated 12 October 2012, the Council nonetheless decided that the public interest warranted release of the file concerned. It advised the applicant of this decision on 10 December 2012. On 19 December 2012, the applicant made an application to this Office for a review of the Council's decision. In the course of that review, having reconsidered its assessment of the public interest test, the Council accepted that the details at issue should not be released.
In carrying out my review, I have had regard to correspondence between the Council and the applicant as set out above, to details of various contacts between this Office and the Council, to correspondence between the Council and the requester, and, in particular, to letters sent by Mr. Richie Philpott, Investigator, dated 4 December 2013, to both the original requester and the Council ("the preliminary view letters"). In addition, I have had regard to the relevant provisions of the FOI Act. I note that the Council responded on 9 December 2013, accepting the views expressed by Mr. Philpott in the preliminary view letter, but no response was received from the original requester to date. I have therefore decided to conclude this review by way of a formal binding decision. In doing so I have also had regard to the relevant provisions of the FOI Act.
The scope of this review is confined to assessing whether the Council is justified in its decision not to release the file to the requester, under section 29(3) of the FOI Act.
It should be noted that, in a review of a decision to which section 29 applies, there are limits to the provisions of the FOI Act that I may consider. Section 29 requires consultation with a third party where any one or more of three specific exemptions is considered by the public body to be relevant to the records at issue (i.e. sections 26, 27, or 28), but where it considers the public interest warrants release of the records nonetheless. Thus, any ensuing review by me of such a decision cannot consider whether the records concerned could be exempt under any other provision of the FOI Act.
I should point out that section 34(12)(a) of the Act provides that the public body's decision on a request shall be presumed to be justified unless the person to whom the information relates "shows to the satisfaction of the Commissioner that the decision was not justified".Thus, generally speaking, the onus would be on the applicant - as the person objecting to a public body's decision to release information in the public interest - to show that, on balance, the public interest would not be better served by granting access to the details concerned.
However, in this case the Council has revised its initial decision that the details at issue should be released in the public interest, and now accepts that the public interest would be better served by non-release than by release of the relevant records Therefore it is that new position that I have reviewed in this case. In this regard, it should also be noted that the decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office.
While section 29 of the FOI Act relates to records which may fall for exemption under sections 26, 27 and 28 of the FOI Act, in my view the section most relevant to the circumstances of this case is section 28. This mandatory exemption relates to personal information, and provides as follows:
"28.—(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual). ".
Included with the definition of such information in the Act is a list of twelve categories of personal information. One of these categories relates to a person's property, i.e.:
"(xi) information relating to the property of the individual (including the nature of the individual's title to any property)...".
As the records at issue in this case relate to a pre-planning enquiry made by the applicant, I am satisfied that they relate to the applicant's property, and are therefore personal as provided for in category (xi), as set out above.
However, that is not the end of the matter, because Section 28 of the FOI Act contains a public interest test, in Section 28(5), which states as follows:
"(5) Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance—
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,
the head may, subject to section 29, grant the request."
As the Council's revised position is that the records should not be released, I have considered whether the public interest would or would not be better served by the release of the requested records in this case. In applying this public interest test, it is necessary for me to balance, on one hand, factors in favour of the release of the records with, on the other hand any factors that may lead to a conclusion that the public interest would not be better served by the release of the records in the case.
Openness and transparency in the way public bodies perform their functions is a significant public interest factor favouring release of records. A relevant factor in favour of the release of the file, in this case, is the public interest in seeing how the the Council demonstrated openness and transparency in how it managed the pre-planning application. This must be balanced against the right to privacy of the individual who made the pre-planning application, but who did not subsequently pursue the matter to the planning stage. While there is a legal onus on Councils to retain pre-planning files, and to attach them to relevant planning files (by which means they then enter the public domain) there is no relevant planning file in this case, and, accordingly, the matter would have remained private except for the FOI request which I am now examining.
Having considered the matter, in my view the public interest in releasing the information does not override the public interest in maintaining the privacy of the applicant's personal information. I note that the Council is now in agreement with this position.
As no further public interest grounds have been identified on which any invasion of the applicant's privacy could be justified, I thus have no reason to direct the release of the details at issue. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the revised position of the Council in this case and direct that the records concerning the applicant's pre-planning application to the Council be withheld from release.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator