Decision
Mr. X & Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-158029-H3Z7J4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158029-H3Z7J4
Published on
Whether the Council was justified, under section 35(1)(a), in refusing access to records relating to a public consultation
26 June 2025
In a request to Limerick City and County Council (the Council) dated 15 January 2025, the applicant sought access to communications emailed to the Council by two named large retailers or their representatives as part of a public consultation concerning a proposed relaxation of the O’Connell Street (County Limerick) bus lane hours in December 2024.
While I am limited in the extent to which I can describe the record(s) at issue, I believe it would be useful to include some contextual background information. Since 2022 a full time (24hour) Bus Lane has been in operation on O’Connell Street southbound from William Street to Cecil Street. The Council invited the views of the public prior to a request to relax the operating times outside the peak commuter times. The public were asked whether they were in favour of the O’Connell Street Bus Lane hours being reduced from the 24hour operation to the hours of 07:00 to 10:00 and 16:00 to 19:00 Monday to Friday until the end of December 2024. The Public could express their views via a survey portal on the Council’s website or to the Councils Travel and Transportation Department directly by email.
In a decision dated 10 February 2025, the Council refused the request under section 35(1)(a) of the FOI Act. It said several submissions were received as part of the public consultation process for the relaxation of the O’Connell Street bus lane hours in December 2024 and a summary document was published on its website. It said this document did not include the names of the individuals who made submissions to the Council as thy were given in confidence. It said it could not, therefore, confirm if submissions were received from either of the retailers referenced in the request. It provided the applicant with a copy of the submission summary document.
On 25 February 2025, the applicant requested an internal review of the Council’s decision, following which the Council affirmed its refusal of the request. It confirmed that only one of the two named retailers made a submission. It said it contacted the retailer who did not consent to the release of the submission. It refused access to the submission under section 35(1)(a) of the FOI Act.
On 4 April 2025, 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 correspondence outlined above, to the submissions made by both parties and to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under section 35(1)(a) of the FOI Act, to the submission the Council received from one of two named retailers in respect of the public consultation in question.
Section 35(1)(a)
Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a request for certain information given to a public body in confidence. For the section to apply, the public body must show that:
• the information was given to an FOI body in confidence and,
• the information was given on the understanding that it would be treated by the FOI body as confidential and,
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied for a record to be considered exempt from release under section 35(1)(a) of the Act. However, even if all four requirements have been met, the section is subject to the public interest balancing test set out in section 35(3).
Council Submissions
In its submissions to this Office, the Council said the survey published requested submissions from the public (civilians and business owners) on the potential relaxing of the bus lane in question. It said that when seeking submissions from the public, the survey did not mention that the name of a participant would be released into the public domain. It said participants were also welcome to email its Travel and Transportation Department directly, and that the relevant retailer made its submission by this means, again on the understanding that its name would not be released. It said that as the survey did not seek or state that it would be publishing the identities of the participants, the submissions were made on that understanding. It said it is not the practice of the Travel and Transportation Department to publish identities of those partaking in surveys so as to encourage participation from the broader public.
The Council added that as the nature of the survey involves personal opinion and its aim is to capture a broad spectrum of responses from the public in general, it considers that to release the names may discourage participants from the wider community in the event of any public backlash. It said that to maintain confidence, trust and value the opinions of those whom the Council serves, and to ensure that it delivers those services to the highest standards, public consultation is often carried out when making decisions. It said this ensures that the needs of the public at large (Businesses and citizens) are addressed in the decision making process and applied where practicable. It said it is therefore essential to continue to work with the public and public consultations/surveys are a vital means to delivering services.
Applicant Submissions
In his correspondence with this Office, the applicant noted that section 35(1)(a) requires that "disclosure would be likely to prejudice the giving to of the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body". He argued that section 35(1)(a) should not apply to a public consultation process. He said it is not credible to rule that two of the biggest retailers in the country would cease to make submissions to public consultation processes in future because their information may be released publicly. He said both retailers (or their agents) would be aware that information provided as part of a public process to a public body is likely to be subject to Freedom of Information publication. He said that if the submissions were related to planning applications, they would have been published automatically. He said it is custom and practice for responses to public consultations to be accessible under the FOI Act and he referenced a particular public consultation process by way of example. He said there is a clear public interest in people knowing the actions of large retailers and their concerns around the impact Council-led measures may have on business in the city.
My Analysis
The applicant’s general assertion is that submissions made on foot of public consultations should be made public as a matter of course. He appears to be of the view that none of the conditions for section 35(1)(a) to apply should ever apply to such submissions or to the identities of those making the submissions. I do not accept this argument. For example, it seems to me that a distinction can be drawn between how the identities of those who make submissions are treated and how the substantive submissions themselves are treated. I fully accept that that there may be occasions where it is necessary and/or appropriate for a public body to give assurances that the identities of those making submissions will be treated as confidential, to ensure that it receives as broad and comprehensive a response as possible.
I have examined the example the applicant provided of a particular public consultation that he considers to support his view that it is custom and practice for responses to public consultations to be accessible under the FOI Act. The consultation notification states that any person can make a submission and that those responses are subject to a range of legislation, including the FOI Act. The notification states that the body “will carefully consider all comments and suggestions received and will publish a consultation response”. It goes on to state that the body “will redact (remove) personal data before publication”. It seems to me that the notification cannot be interpreted as suggesting that the identities of those who make submissions will be published. Indeed, the notification appears to indicate the opposite. It is certainly not evidence that supports the proposition that it is customary for unredacted submissions to be published.
In this case, the Council survey did not indicate that the identities of respondents would be made public. Moreover, the particular retailer indicated, when asked, that it did not consent to the release of its submission. I accept the Council’s assertion that it is not the practice of the relevant Council department to publish identities of those partaking in surveys so as to encourage participation from the broader public. I accept therefore, that the relevant submission was given on the understanding that the identity of the submission maker would be treated by the FOI body as confidential.
On the other hand, I do not accept that the retailer could reasonably expect that the nature of the substantive submission would be treated as confidential. Indeed, the Council proceeded to publish a summary of the substantive submissions. However, in circumstances where the applicant’s request was limited to submissions made by two specific retailers and where the Council has confirmed that it received a submission from one of those parties, I do not consider it feasible to separate the substantive submission from the identity of the retailer in this case. In the circumstances, I find that the first two requirements for section 35(1)(a) to apply are met in this case.
I am also satisfied that the release of the record would be likely to prejudice the giving to the Council of further similar information from the same person or other persons and that it is of importance to the Council that such further similar information should continue to be given to the body. Regardless of the applicant’s views as to whether retailers such as those referenced in his request would be likely to make submissions in the future, I accept that knowledge of the fact that the identities of those making submissions are likely to released would, indeed, deter some individuals from making submissions. Public consultations by their very nature attempt to gather relevant information from a broad range of participants and it cannot simply be argued that to release the identities of the retailers in this case could not have any bearing on the participation of any other parties. I also accept that it is important to the Council that it should receive as broad a response as possible to similar such surveys in the future. Accordingly, I find that section 35(1)a) applies to the record.
Section 35(3)
Section 35(3) provides that section 35(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting the FOI request. In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to (a) 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, (b) the need to strengthen the accountability and improve the quality of decision making of FOI bodies and (c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
I have also had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a “sufficiently specific, cogent and fact-based reason ” in order “to tip the balance in favour of disclosure ”.
In its submissions to this Office, the Council said it considered the following arguments in favour of release of the record:
• the right of the public to access information
• the need for the public to be better informed on the Council’s decision making processes, and
• the accountability of the Council
Is said that against release, it considered the following:
• release of the record would identify which retailer made the submissions and which didn’t,
• consent has not been given by the relevant retailer and to release the record would impact the relationship between the retailer and the Council
• businesses, retailers, and individuals should be allowed to make submissions to the Council on the understanding that their identity is not released into the public domain
• While it was never the intention of the Council to release the identities of those who made submissions, the Council did, however, release a coy of the submissions made which allowed the public to view their contents.
As I have outlined above, the applicant argued that there is a clear public interest in people knowing the actions of large retailers and their concerns around the impact Council-led measures may have on business in the City.
I fully accept that there is a significant public interest in enhancing the transparency and accountability of the Council’s decision-making processes and in the public knowing what particular matters were considered and fed into those decision making processes. In this case, it seems to me that those public interests have been met to a very significant extent by the Council’s publication of the substantive submissions made. In my view, the extent to which the disclosure of the identities of those who made the submissions would further serve those public interests would be quite limited.
On the other hand, there is a significant public interest in ensuring that the Council can receive as broad and comprehensive a response to such surveys as possible and that any disclosure that might undermine its ability to do so would not be in the public interest. Indeed, it is also in the public interest that members of the public can be assured that they can participate in such surveys without fear of having the identities disclosed to the wider public where they understood that their identities would not be disclosed. Accordingly, I find that the public interest would, on balance, be better served by withholding the submission sought I this case. I find therefore that the record is exempt from release under section 35(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified under section 35(1)(a) in its decision to refuse access to the record at issue.
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