Decision
Mr L and Donegal County Council
From Office of the Information Commissioner (OIC)
Case number: 130095
Published on
From Office of the Information Commissioner (OIC)
Case number: 130095
Published on
Whether the Council was justified in refusing the applicant's request for access to planning enforcement files on the basis of section 23(1)(a)(i) and (ii) of the FOI Act
12 September 2014
On 27 August 2012 the applicant made an FOI request to the Council for access to planning enforcement files UDLY 08/25 and DP 622/22/1355. The Council issued its decision on
19 September 2012 refusing access to the requested records on the basis of sections 23(1)(a)(i) and (ii) of the FOI Act. Following an application by the applicant, the internal reviewer affirmed the original decision on 30 October 2012. The applicant requested a review by the Information Commissioner of the Council's decision on 26 April 2013.
In conducting my review I have had regard to the application and submission from the applicant, the submissions from the Council and to correspondence between the applicant and the Council. I have also had regard to the contents of the records provided to this Office by the Council and to the provisions of the FOI Act.
The issue in this review is whether the Council was justified in its decision to refuse access to the requested records on the basis of section 23(1)(a). By way of background I note that the records were created in connection with the Council's enforcement actions regarding alleged unauthorised extraction of material from the River Foyle. The matter appears to be the subject of ongoing proceedings between Council and the applicant.
It is relevant to note that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.
Section 23
The Council relied on sections 23(1)(a)(i) and (ii) to refuse access to the withheld records. Section 23(1)(a) provides that a request for access to a record may be refused if "access to the record concerned could, in the opinion of the head, reasonably be expected to-
(a) prejudice or impair -
(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,
(ii) the enforcement of, compliance with or administration of any law,".
Section 23(1) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of a record, rather than by its refusal, in the event that one of three conditions is fulfilled. I am satisfied that none of the three conditions is relevant to the information at issue in this case.
Section 23(1)(a) is a 'harm' based exemption. Public bodies must show how the harm or outcome anticipated could reasonably be expected to result from the release of the records. The link between the information contained in the record and the potential harm expected from its release must be identified by the body. In its submission to this Office the Council advised that the matter covered by the records at issue was subject to ongoing legal proceedings. It contended that release of the records could impair the prosecution's case.
I note that Ms Stephanie O'Connell, Investigator in this Office, outlined her views to the Council. She indicated that, in her opinion the Council had not demonstrated the harm that might reasonably be expected to occur if the records were released. She considered that the applicant was probably aware of much of the content. However, she considered that some information might be exempt e.g. legal advice or preparation for litigation which would qualify for legal professional privilege.
The Council contended that release of all the records would prejudice or impair 'the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal'. this appears to be a claim that section 23(1)(a)(iv) applies although this was not cited in the Council's decision.
The Council said that the records existed as one single record for the purpose of evidence for the legal proceedings. It refused to release any of the records in part or otherwise on the basis that to do so would risk misrepresenting the entire record. The Council adopted a blanket approach by claiming that section 23(1)(a) applied to all of the records relevant to the review. The records comprise three files containing 859 pages. According to the Council, its Law Agent released a significant volume of records to the applicant's solicitors in the course of the legal proceedings. However, it did not identify which of the records had been the subject of discovery.
On 15 May 2013 this Office requested the Council to provide a numbered copy of the records and a schedule that identified which records were withheld and which released in full or in part. In her preliminary view to the Council, Ms O'Connell also sought a schedule of records bearing in mind the volume of records at issue and in order to support the review process. The Council said that due to resource constraints it could not facilitate the request. It argued that the case remains on appeal to the High Court and that it is not prepared to release 'material evidence....in a piecemeal fashion'. The Council stated that the risks to the fairness of proceedings are real and that release of the records would affect its ability to efficiently prosecute its case.
In his submission, the applicant argued that the Council has shown bias and a failure to grant him his statutory rights. He maintains that the allegations of unauthorised use are unproven.
Included in the relevant files are images of vehicles, legal correspondence, maps and photographs of piles of gravel which on the face of it, do not appear to be exempt on the basis of section 23(1)(a). Having examined the records, I do not accept that all them withheld by the Council are exempt under section 23(1)(a) of the FOI Act. I accept that disclosure of some of these records might allow the applicant to be aware of the evidence which the Council may use in any proceedings. However, it seems to me that the mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings.
The Council has not shown by reference to the content of the records how the applicant being aware of its position or of the methods and procedures used to investigate alleged breaches of the Planning Laws could give rise to any of the harms identified in section 23(1)(a). Neither has it shown how enforcement of or compliance with any law would be impaired as a result of release of the records at issue.
I acknowledge that there is potentially a degree of overlap between the provisions of section 23(1)(a)(i) and section 23(1)(a)(iv) in relation to proceedings or prosecutions. The former Commissioner, the late Mr. Kevin Murphy, found that there will be occasions when, given the circumstances of the case, release of relevant records during an investigation of offences or before a prosecution had concluded could prejudice or impair the investigation and, by extension, the prosecution of offenders. For example, in the case of Mr and Mrs ABJ and the Office of the Revenue Commissioners (decision No. 98102 on www.oic.ie), the former Commissioner said that "the imposition of a requirement on the Revenue to disclose its proposed conduct of a case in advance without a corresponding requirement in the case of the appellant would, in many cases, impair the fairness of the proceedings", the proceedings in question relating to an appeal before the Revenue Appeal Commissioners. He has also found, in the case of Mr ABM and Others and the Office of the Revenue Commissioners (Case No. 99017) that "based on the lack of reciprocity, the potential for making a possible detrimental inroad into the Revenue's ability to prepare confidentially for the conduct of proceedings in the case ..... I am satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Circuit Court". It is clear, however, that a lack of reciprocity, of itself, does not provide sufficient basis on which to claim exemption pursuant to the provisions of section 23(1)(a)(iv).
The former Commissioner also found in Case No. 98108 - Mr X and the Department of Agriculture, Food and Rural Development that section 23(1)(a)(ii) did not apply to alleged breaches of Animal Health Regulations where the Department had failed to show how being aware of the evidence or methods and procedures used to investigate alleged breaches of the Regulations could give rise to any of the harms identified.
I am satisfied that all of the records do not contain legal strategy, nor do they contain details of how the Council proposes to conduct its case. The records identified by the Council as being within the scope of this request were not examined on a record by record basis. Included in these records, as stated above, are records which do not appear to qualify for exemption under section 23(1)(a)(i) or (ii) or (iv).
However on foot of my initial examination, I agree with the Investigator's view that there are some records which might be exempted from release on the basis of particular exemptions in the FOI Act and others which might not qualify for any exemption. For reasons which it has put forward in this review, the Council has not undertaken any substantial consideration of the content of the individual records. In relation to its position that the records are voluminous and their examination has serious resource implications, I note that none of the provisions of section 10(1) and 10(2) of the Act have been cited.
I consider that it is not appropriate or valid for the Commissioner to take the same blanket approach adopted by the Council in this case. Therefore, taking account of section 34(12)(b) and following careful consideration, I consider that the decision of the Council should be annulled and I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Council in this case. I direct the Council to undertake a proper assessment of the content of the records to establish which, if any, qualify for exemption under the FOI Act. The effect of this is that the Council is required to make a new, first instance, decision in accordance with section 8 of the FOI Act and to notify the applicant of this as required.
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 after notice of the decision was given to the person bringing the appeal.
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Elizabeth Dolan
Senior Investigator