Decision
Mr. A and Inland Fisheries Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-148397-C4X5J7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148397-C4X5J7
Published on
Whether IFI was justified in refusing access to certain records in full or in part, relating to a disputed right of way to a fishery at a named location, under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act
17 June 2025
The background to this review lies in a dispute between the applicant and IFI concerning a right of way. In a request dated 13 January 2024, the applicant sought access to all records in relation to the disputed right of way. In a decision dated 4 March 2024, IFI identified 57 records as coming within the scope of the request. It refused access to records 13, 22, 23 and 27, and record 8 in part, under section 31(1)(a). It granted partial access to records 5, 6, 15, 42, 45, 52, and 56 with redactions under section 37(1) of the Act. The remainder of the records were released in full. The records consist of email correspondence, letters, court orders, affidavits from IFI staff, land registry details, maps and photographs of the lands in question, newspaper articles, and details of meetings with the applicant.
On 17 March 2024, the applicant sought an internal review of that decision. He said the response contained no phone logs, minutes of meetings, memorandums and only a fraction of the electronic records. He said the records contained names that he wanted to be unredacted. In its internal review decision, issued on 16 April 2024, IFI refused access to any further records under section 15(1)(a) of the Act. It said it does not hold any records in relation to any memorandums or minutes of meetings in relation to the lands and that all relevant records had been released on foot of the request and two previous requests. It said it does not keep a record of any phone logs. On 22 April 2024, the applicant applied to this Office for a review of IFI’s decision.
During the course of the review, IFI made submissions in relation to its reliance on section 15(1)(a) of the Act to refuse access to further relevant records, the details of which were provided to the applicant. In response, the applicant noted that searches were not undertaken using his first name and surname. Following further engagements with this Office, IFI conducted additional searches and located 20 additional records, scheduled as records 58 to 77. The additional records consisted of email correspondence, letters between IFI and their legal representatives, court orders and meeting agendas with follow up actions noted. IFI refused access to records 59, 60, 62, 65 and 66 under section 31(1)(a), while record 67 was refused under sections 31(1)(a) and 36(1)(b) of the Act. It granted access to parts of records 73 to 77, the remainder of which it withheld on the ground that the information in question was outside the scope of the request. The applicant was afforded, and availed of, the opportunity to comment on IFI’s reliance on sections 31(1)(a) and 36(1)(b) to refuse access to the additional records identified.
During the review, the Investigator sought clarification of the basis on which IFI was refusing access to records 65 and 66 under section 31(1)(a). In response, IFI said it relied in error on section 31(1)(a) and should have instead relied on section 37(1) of the Act as the records contain personal information of third-party individuals. The applicant was informed of IFI’s revised position regarding records 65 and 66 and was invited to make further submissions, which he duly made.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the applicant’s comments and submissions during the course of this review and to the submissions made by IFI in support of its decision. I have also reviewed the content of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
As I have outlined above, IFI argued that the remainder of records 73 to 77 are not captured by the scope of the request. It said the records are not ‘minutes of meetings’ and are, instead, agendas of monthly meetings which contain actions to be carried out on foot of an agenda item. It said it released the relevant parts of the records that related to the applicant.
Having examined records 73 to 76, I am satisfied that redacted information relates to matters that are altogether separate and distinct from the applicant’s FOI request. Accordingly, I will give no further consideration to those records. With regard to record 77, I am satisfied that the redacted information falls within the scope of the request. It is directly related to the information in the record that was released to the applicant. During the review, the Investigator informed the applicant of the potential relevance of section 37 of the Act to the redacted information. In response, the applicant indicated that he wants access to the full record.
Accordingly, this review is concerned solely with whether IFI was justified in refusing access, in whole or in part, to 5, 6, 8, 13, 15, 22, 23, 27, 42, 45, 52, 56, 59, 60, 62, 65, 66, , 67 and 77 under sections 31(1)(a), 36(1)(b), and 37(1) of the Act, and in refusing access to any other relevant records under section 15(1)(a) of the Act on the ground that no further relevant records exist or can be found.
Before I address the substantive matters arising in this case, I wish to outline this Office’s approach to granting partial access to records. Section 18(1) provides that “if it is practicable to do so”, access to an otherwise exempt record shall be granted by preparing a copy in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). In so far as the Commissioner's position on granting partial access to records is concerned, he takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
It is also important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Section 15 – Refusal on administrative grounds to grant FOI requests
Section 15(1)(a) of the FOI Act provides for the administrative refusal of a request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. The role of this Office in cases involving section 15(1)(a) is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken and make a finding on whether the FOI body’s position is reasonable.
IFI relied on section 15(1)(a) to refuse access to relevant phone logs, memorandums and minutes of meetings. In submissions to this Office, it said it conducted manual searches of hard copy and electronic files and email accounts using the key words of the named river and surrounding area. It said correspondence with relevant staff and legal advisers was included in searches. It said no records were destroyed. It said it does not keep records of phone logs with the exception of calls to a 24-hour hotline which is used by members of the public to report poaching or pollution.
The Investigator informed the applicant of the details of IFI’s submissions. In response, among other things he disputed the assertion that phone logs and minutes of meetings do not exist. He said IFI are supplied with work phone records every month from their service provider so they have a record of every call and whatsapp message. He said IFI also has the minutes of meetings whether or not they are in person or on a zoom call. He noted that IFI did not appear to have carried out searches for records using his name as a search term.
Following the applicant’s submissions, IFI again said it does not keep logs of phone calls apart from a log kept by an external provider that maintains a 24-hour confidential incident hotline to report illegal fishing, water pollution or invasive species. It said the external provider did not indicate that that a call had been logged in relation to the relevant matter. It provided details of the additional searches undertaken which resulted in the location of the additional records. It said no specific meetings were held in relation to the applicant or the disputed lands in question and that all correspondence took place over phone conversation and via email with IFI’s legal adviser. It said these records either do not exist or have been part granted or withheld as exempt. In his subsequent submissions, the applicant made no further comment regarding IFI’s reliance on section 15(1)(a) of the Act.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. It is clearly envisaged by the Act that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. This Office does not expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable.
It is unfortunate that IFI did not initially conduct comprehensive searches and that it located 20 additional records only after it was notified of the applicant’s comments. Nevertheless, its position now is that it has, at this stage, taken all reasonable steps to locate all relevant records. While the applicant may be unhappy that IFI has not been able to locate certain records he believes should exist, this review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of a requester’s views as to the appropriateness or otherwise of the absence of certain records or records which they believe ought to exist. I would add that the requirement on an FOI body to take reasonable steps does not mean that it must take all of the steps a requester suggests should be taken. For example, I do not consider that IFI should reasonably been expected to check with its phone service providers to see if they might hold any relevant records.
Having regard to the details provided by IFI of the searches undertaken in an effort to locate the records sought, and in the absence of specific evidence to suggest that additional reasonable searches are warranted, I am satisfied that IFI has, at this stage, taken all reasonable steps to ascertain the whereabouts of relevant records. Accordingly, I find that IFI was justified in refusing, under section 15(1)(a) of the Act, access to phone logs, memorandums or minutes of meetings.
Section 31(1)(a) – Legal advice and privilege
Section 31(1)(a) of the Act provides for the mandatory refusal of a request if the record concerned would be exempt from production in court proceedings on the ground of legal professional privilege (LPP). This mandatory exemption does not require a consideration of the public interest test. LPP enables the client to maintain the confidentiality of two types of
communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Legal advice privilege attaches to confidential communication between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, where the legal adviser is acting in a professional capacity. Moreover, legal advice privilege may also attach to records which may not, on an individual basis, satisfy the criteria for LPP but which form part of a series of communications made for the purpose of giving or receiving legal advice. This Office takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
IFI refused access to records 8 (in part), 13, 22, 23, 27, 59, 60, 62, and 67 under section 31(1)(a) on the grounds of legal advice privilege. It said the records contain confidential communications between IFI and its legal adviser for the purposes of obtaining legal advice regarding a land property matter in relation to the case that was brought by IFI against the applicant. Having examined the records, I am satisfied that legal advice privilege applies and that the last paragraph of record 8 and records 13, 22, 23, 27, 59, 60, 62, and 67 are exempt from release under section 31(1)(a) of the FOI Act.
Section 36 – Commercial Sensitivity
IFI refused access to record 67 under section 31(1)(a) and 36(1)(b) of the Act. As I have found the record to be exempt under section 31(1)(a), I do not need to consider the applicability of section 36(1)(b) to the record.
Section 37 – Personal Information
IFI redacted information from records 5, 6, 15, 42, 45, 52 and 56 under section 37(1) of the Act. As I have outlined above, during the course of the review it also cited section 37(1) as the basis on which it wished to refuse access to records 65 and 66. I have also formed the view that section 37(1) is applicable to record 77.
Section 37(1) provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the applicant, also involve the disclosure of personal information relating to an individual or individuals other than the applicant (commonly known as joint personal information).
Personal information is defined in section 2 of the FOI Act 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 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, including (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 and (xiv) the views or opinions of another person about the individual.
The information redacted from records 5, 6, 15, 42, 45, 52 and 56 comprises the names of certain third-party individuals, including addresses, an email address, phone number, and occupation details. I am satisfied that the redacted information comprises third party personal information and that section 37(1) applies.
Records 65 and 66 comprise correspondence IFI’s legal adviser received from a third party that contains detailed personal information relating to both the sender and to various other identifiable third parties. I am satisfied that the release of the records would involve the disclosure of personal information relating to identifiable individuals other than the applicant and that section 37(1) applies.
The information redacted from record 77 includes the name of a third party, and comments and references to staff members of IFI. I am satisfied that the comments comprise personal information relating to the individuals about whom the comments relate, notwithstanding the fact that they are IFI staff. I am satisfied that section 37(1) applies to the redacted information.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2) provides that section 37(1) does not apply if;
a) subject to subsection (3), the information concerned relates to the applicant concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the applicant,
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 mad that any of the provisions of section 37(2) apply in this case and I am satisfied that section 37(2) does not apply .
Section 37(5)
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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 person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
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 in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a), FOI is not about granting access to information to particular individuals only and as noted above, an applicant'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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy in both the language of section 37 and the Long Title of the Act (which makes it 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 only be set aside 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).
In his correspondence with this Office, while the applicant said he believed it to be in the public interest to release records 65 and 66, he did not say why he considered this to be the case. Regarding record 77, the applicant has said that comments and names of IFI staff are not exempt under FOI. I am conscious of the fact that the records at issue are held by IFI in the context of a dispute it has with the applicant and I accept that there is a public interest in ensuring that members of the public are as fully aware as possible of the manner in which public bodies such as IFI deal with such disputes. However, the nature of the information that has been withheld in this case is such that its release would not, in my view, serve that public interest to any real extent. On the other hand, I must have regard to the fact that its release would breach third party privacy rights and that the release of the records must be regarded as being effectively, or at least potentially, to the world at large. I am not satisfied that there is a strong public interest in release to the world at large that would outweigh, on balance, the strong public interest in protecting the privacy rights of the third-party individuals. I find therefore that section 37(5)(a) does not apply to the records in question.
In conclusion therefore I find that IFI was justified in refusing access, under section 37(1) of the Act, to records 5, 6, 15, 42, 45, 52, 56, 65, 66 and 77 in whole or in part.
Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of IFI to refuse access to any additional relevant records under section 15(1)(a) of the FOI Act, to refuse access, in whole or in part, to records 8, 13, 22, 23, 27, 59, 60, 62, and 67 under section 31(1)(a), and to refuse access, in whole or in part, to records 5, 6, 15, 42, 45, 52, 56, 65, , 66 and 77 under section 37(1).
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.
Stephen Rafferty
Senior Investigator