Decision
Mr X and Clare County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-133647-M4H8Q6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-133647-M4H8Q6
Published on
Whether the Council was justified in refusing access to records relating to a specified planning application file
29 November 2024
In a request dated 1 June 2022, the applicant sought access to all records related to a specified planning file. The planning application in question relates to the erection of a wind turbine, which later became the subject of a number of complaints and, ultimately, court proceedings which remain ongoing at the time of writing. In the course of the Council’s processing of his FOI request, he agreed to narrow the scope of the request to exclude complaints made by members of the public to the Council related to the planning file. In a decision dated 29 June 2022, the Council refused the applicant’s request, citing sections 29(1), 30(1) and 32(1)(a)(i) and (ii) of the FOI Act as grounds for its decision. On 8 July 2022, the applicant sought an internal review of the Council’s decision. In its internal review decision dated 22 July 2022, Council affirmed its original decision. On 4 January 2023, the applicant applied to this Office for a review of the Council’s decision.
In addition, in the course of conducting this review I formed the view that an additional provision of the FOI Act, namely section 31(1)(a), was potentially applicable to certain records. I contacted the applicant and the Council to invite submissions on section 31(1). Both parties subsequently made further submissions, and I have considered same in full. In the course of its further submissions, the Council also indicated its view that certain records were exempt under section 31(1)(b). Again, as the applicant had not had an opportunity in the context of this case to consider the applicability of section 31(1)(b), I wrote to him to put him on notice of the potential applicability of same and to invite him to make any further submissions that he wished. No further submissions were received from the applicant. In its further submissions, the Council also sought to rely on an additional subsection of section 32(1)(a), which it had previously cited, namely subsection (iv). Furthermore, in the course of this review I formed the view that I was also required to consider the potential applicability of section 37(1) of the FOI Act, and I sought and received submissions from the applicant on this point.
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 exchanged between the parties and the submissions made by the Council in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
It is 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.
I also wish to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
Finally, I wish to note that certain information in the records relates to a number of third parties (companies associated with the developer of the wind turbine) and, accordingly, those parties were invited to make submissions. No submissions were received. Essentially, the information in respect of which I sought third party submissions is material created in the context of ongoing court proceedings (such as affidavits and exhibits, etc) that arise from the erection of the wind turbine. The developer is also mentioned in the course of certain other records including correspondence to and from the Council. The developer is a party to the relevant litigation and I am satisfied that, given the nature of the relevant records and the context in which they were created, he cannot but be aware of the nature of the information in the records that relates to him and his companies. I also wish to note that, although I indicated in my correspondence to the third parties that I was considering the potential application of sections 36(1) of the FOI Act (relating to commercially sensitive information), I have ultimately formed the view that I am not required to consider in detail this provision. It is of relevance in this regard that the name of the developer is a matter of public record, being named on the public-available planning application file.
This review is solely concerned with (i) whether the Council was justified, under sections 29(1), 30(1), 31(1), 32(1) and 37(1) of the FOI Act, in withholding access to certain of the records sought by the applicant.
Records at issue
In the schedule of records provided by the Council, it identified 93 records that fell within the scope of the applicant’s request, as follows.
• records 1, 3, 7, 12, 20 and 29: internal Council emails for the period 18 February 2021 to 15 March 2021
• records 2, 4, 9, 19-20, 23, 24-26, 34- 35 and 43: emails between the Council and elected representatives, for the period 22 February 2021 to 8 April 2021
• records 10, 27, 32-33, 36, 37, 42, 50, 52, 53 and 76: correspondence from members of the public to the Council, and the Council’s acknowledgements of same, for the period 2 March 2021 to 16 August 2021
• record 30: emails dated 11 March 2021 and 16 March 2021 between an elected representative and a third party, with the Council included as a recipient of the latter’s email
• records 5, 6, 8 and 39: emails from the applicant to the Council, for the period 22 February 2021 and 30 March 2021
• records 11 and 13: site reports by the Council, dated 4 March 2021 and 5 March 2021, the latter of which incorporates relevant photographs and maps
• records 14, 15, 16 and 17: Enforcement Notices and associated correspondence issued by the Council to the developer of the wind turbine, each dated 8 March 2021
• record 1: proof of delivery of the above Enforcement Notices and associated correspondence
• records 21 and 22: emails from the Council to unnamed complainants, dated 10 March 2021, attaching the above Enforcement Notices
• record 28: letter from the Council to a named third party, dated 5 March 2021 and a notice from An Post indicating that it had not been successfully delivered
• record 33: emails exchanged between the Council and a named third party, for the period 11 March 2021 to 19 March 2021
• records 38, 44 and 49: postal and email correspondence between the Council and solicitors on behalf of the relevant developer, for the period 11 March 2021 to 26 April 2021. Records 44 and 49 each include an attachment comprising an Order of the High Court dated 19 April 2021 pertaining to Judicial Review proceedings
• records 40 and 41: land registry documents, maps and information relating to the developer of the wind turbine from the Companies Registration Office (CRO)
• records 48, 51, 55-75 and 77-93: letters and emails between the Council and its legal advisors, for the period 21 April 2021 to 3 February 2022
• record 54: email correspondence between the Council and various named third parties, for the period 6 May 2021 to 11 May 2021.
As noted above, the applicant agreed to exclude certain records from the scope of his request on the basis that they comprised complaints from members of the public. The records excluded by the Council on this basis are records 10, 27, 31, 32, 36, 37, 42, 50, 52, 53 and 76. I am also satisfied that record 33 can also be excluded on the same basis.
Section 31(1)
It appears to me that both subsections (a) and (b) of section 31(1) of the FOI Act are potentially of direct relevance to a significant number of the records at issue. With this in mind, and noting that section 31(1) is a mandatory exemption, I consider it appropriate to examine first the potential applicability of section 31(1).
Section 31(1)(a)
Section 31(1)(a) of the FOI Act provides that access will be refused to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). As outlined above, the Council itself did not initially seek to rely on section 31(1)(a). However, as it is a mandatory exemption (ie. records that fall within the scope of the exemption must be withheld from release), I am nonetheless required to consider its potential applicability, and find it to apply if I am satisfied that the relevant tests for the exemption are met.
In its submissions, the Council indicated that it considered records 48, 51, 55-75 and 77-93 to be exempt from release under section 31(1)(a). In addition to the records identified by the Council, I also take the view that section 31(1)(a) is potentially applicable to records 38, 44 and 49.
LPP enables the client of a legal advisor 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).
The Council confirmed that two separate sets of legal proceedings currently existed in relation to the planning dispute centred around the erection of the wind turbine. Given this fact, and having considered the nature and contents of the records at issue, I find that litigation privilege attaches to records 38, 44, 48-49, 51, 55-75 and 77-93. I make this finding on the basis that the material in these records clearly comprises confidential communications made between the Council and its legal advisor, or (in the case of records 38, 44 and 49) the Council’s legal adviser and a third party, the dominant purpose for which is preparation for pending litigation. Accordingly, I find that these records are exempt from release under section 31(1)(a) of the FOI Act.
I note that the Council also cited section 29(1), 30(1) and 32(1) as further grounds on which to withhold the above records. However, in circumstances where I have determined that they are exempt from release under section 31(1)(a), I am not required to also examine the extent to which these other provisions of the FOI Act might apply.
Section 31(1)(b)
Section 31(1)(b) of the FOI Act provides for the mandatory refusal to grant an FOI request if the record concerned is such that the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. The Council argued that section 31(1)(b) applied to those records that comprise documents prepared for the court in the context of the pending litigation, on the basis that to release them would constitute a contempt of court by breaching the sub judice rule. The Council referred to this Office’s Guidance Note on Section 31 in this regard, which notes that “Sub judice may arise where a matter is before the courts and has not yet been decided”.
It is not disputed that this case is still before the courts and has not been decided. However, the fact alone of proceedings having been issued is not sufficient, of itself, to make out the case that breach of the sub judice rule would arise by release of the records or that their disclosure would constitute a contempt of court. The Council stated that, in this case, the matter was ongoing and the relevant records, which comprise affidavits, exhibits and associated documentation, had not been “opened” (read into the public record) in the course of the proceedings. The Council stated that only documents that are “opened” in court could be considered to be publicly available. The Council stated that the evidence contained in the relevant records had not yet been tested by the court. It argued that releasing the records at this stage of the proceedings, when the affidavits have not yet been opened in court and the evidence not yet tested, could prejudice the case. It stated that, should the case proceed to a full hearing, either side may seek to file further affidavits and releasing the records comprising affidavits etc now could prejudice the manner in which the case may progress.
The Council also referred to the High Court case of Allied Irish Bank PLC v George Tracey (No. 2) (2013) IEHC 242 (“the Allied Irish Bank case”), in which Mr Justice Hogan held as follows:
“In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court, or which was protected by the in camera rules or by reporting restrictions imposed…….”.
The Council also referred to section 65(3) of the court Officers Act 1926, which provides that:
“All proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order of the court or the senior of the judges by or before whom such suit or matter is heard”.
In relation to the Council’s arguments that the matter is ongoing before the Courts and that either side may seek to file further affidavits, I am not clear as to how it follows from this that the release of the relevant records would constitute a breach of the sub judice rule. While I fully accept that the matter is ongoing before the Courts and that either side may seek to file further affidavits, the basis on which the Council considers that the release of the records would prejudice any of these issues is not apparent to me. Regarding the Allied Irish Bank case as cited by the Council, firstly I would note that it does not seem to be the case, for example, that these proceedings are held in camera (which prohibit the release of information emanating or derived from such proceedings without prior judicial authority), or that any specific undertaking has been given to the Court not to disclose information relating to the proceedings, or that the Court has imposed any reporting restrictions. I am thus satisfied that this aspect of the judgment is not applicable to this case.
In relation to the issue of the records that comprise relevant court documents not having been opened in the Court, I have noted the comments of the High Court in the Allied Irish Bank case and have also considered the Council’s submissions. I also note that Murdoch’s Dictionary of Irish Law (2nd edition) provides that, when a matter is before a court and issub judice , any words or actions which have a tendency to interfere with the fair administration of justice may amount to a contempt of court. It seems to me, therefore, that in order for a contempt of court to arise, what must be demonstrated is not only that the matter issub judice , but that the release of the relevant records would tend to interfere with the fair administration of justice. I do not consider that the Council has effectively set out the basis on which it considers that the release of the records would interfere with the fair administration of justice. It would seem to be the case that both sets of relevant proceedings are before a judge, who (if the matters proceed to full hearing) will ultimately rule on them. It does not seem reasonable to me to suggest that a judge’s ability to effectively rule on the matters would be impaired by the release of the records at issue. Nor can I foresee a manner in which the release of the records would adversely affect either party to the proceedings in effectively making their case. While I accept that the judgment in the Allied Irish Banks case requires that (in the words of the Court) “…different considerations…naturally arise” where the relevant court papers have not been opened in court (as opposed to when they have been opened), the Court also appears to have stopped some way short of stating that the release of papers that have not been opened in Court will, in itself, constitute a breach of the sub judice rule. The fact alone that information is on affidavit does not, in my view, give it a characteristic that it would otherwise not have. For example, information that is confidential before it is in an affidavit is still confidential once it is sworn and filed (although it may lose that characteristic once the affidavit is opened in a public court case). However, if otherwise uncontroversial information is put in an affidavit, the fact alone of it being in affidavit does not make it confidential.
Based on the above, I am not satisfied that section 31(1)(b) applies to exempt from release any of the records at issue.
Section 29(1)
The Council cited section 29(1) of the FOI Act as a basis to withhold each of the remaining 38 records at issue. Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
In its submissions, the Council argued that section 29(1) applied on the basis that the records were contained on a planning enforcement file and related to enforcement proceedings which had commenced but not concluded. The Council stated that the records contained reports and internal correspondence recommending the initiation of enforcement proceedings. While the Council stated that it accepted that there was a public interest in as many records as possible being put into the public domain, it argued that this was outweighed in this case by its need to ensure that it enforced the planning law consistently throughout the county, and to ensure that the success of the current enforcement action was not prejudiced in any way by the premature release of records and by the potential financial implications of losing the Judicial Review hearing, which it argued could result from the release of the records into the public domain.
I find as follows in relation to the Council’s arguments. Firstly, I do not consider that the Council has identified a deliberative process to which the subject matter of the records relates. In relation to the Council’s argument that the records contain reports and internal correspondence recommending enforcement proceedings, I accept that this is the case in respect of some (but not all) of the records. However, even in the case of those records that do contain reports and internal correspondence recommending enforcement proceedings, I am not satisfied that such material comprises matter relating to the Council’s deliberative process. Generally speaking, a deliberative process involves the consideration of various matters with a view to making a decision on a particular issue. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. It is not clear to me that the information in the records shows the Council to be involved in any such exercise as the weighing up or evaluating of competing options, proposals or courses of action. Certainly, the Council has not pointed to any specific material in the records that meets this criteria, and having examined the records I cannot identify any such material. It seems to me that the Council has sought to exempt the body of records as a whole under section 29(1) without focusing on the specific contents of the individual records. While the records do demonstrate some discussion within the Council of the commencement of enforcement proceedings, they do not seem to me to reveal the Council’s deliberations regarding whether or not to commence the proceedings. For example, the records reveal no discussion within the Council of the potential advantages, merits, disadvantages and risks of commencing such proceedings, or any other matter pertaining to its deliberations of the potential benefits and costs of bringing enforcement proceedings. I accept that certain of the records comprise planning reports that recommend the commencement of enforcement proceedings. However, I do not accept that these constitute matter relating to the deliberations of the Council for the purposes of section 29(1) (and nor has the Council explained how it considers that this might be the case).
Accordingly, in my view, the Council has not satisfied the requirement in section 29(1)(a) of the FOI Act, and in those circumstances I am not required to consider section 29(1)(b). I find that section 29(1) of the FOI Act does not operate to exempt the records from release.
Section 30(1)
The Council also cited section 30(1) as a basis to withhold each of the remaining 38 records at issue. Section 30(1) has three subsections, all three of which the Council cited as grounds to refuse access to the records. Section 30(1) relates to the functions and negotiations of FOI bodies, and provides that a body may refuse to grant an FOI request if access to the records concerned could, in its opinion, reasonably be expected to:
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,
(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff), or
(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
In its submissions, the Council stated that the records related to its planning function and the enforcement of same, which it stated was one of the major functions of a local authority. It argued that there was a need for local authorities to be able to enforce planning legislation to ensure the proper planning and sustainable development of the areas within their remit, and stated that the release of records that could prejudice the future enforcement of this case or any future cases would impact on how the Council manages this function. The Council argued that negotiations had taken place between it and the developer, as a result of which the parties had agreed to place a stay on respective legal proceedings that each intended to bring, pending the determination of certain matters by An Bord Pleanála, and argued that the release of the information in the records could jeopardise this agreement.
Section 30(1)(a)
In order to rely on subsection (a) of section 30(1), an FOI body should identify the potential harm in relation to the relevant function specified in subsection (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation
that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
Based on an examination of the records at issue, I accept that the records show the Council to be engaged in an activity that falls within the scope of section 30(1)(a), namely the carrying out of inquiries for the purposes of the production of a report recommending whether planning enforcement proceedings should be brought. Moreover, I consider that it is reasonable for me to conclude from the Council’s submissions that it expects such inquiries would be harmed by the release of the records. I must therefore consider the reasonableness of any such expectation on the Council’s part. I would first of all note that, while it can be implied from the Council’s submissions that it envisages harms (either to the conduct of the relevant inquiries, and/or the procedures of methods employed for the conduct of such inquiries) that would flow from the release of the records, it has not tied this to the specific contents of the records. It is not clear to me, on the basis of an examination of the records, how any such harms might reasonably be expected to follow from their release. In other words, I cannot identify material in the records the release of which I consider harmful to the conduct of the relevant inquiries in this case, or any similar future inquiries. For example, many of the records at issue are internal Council emails, but a large number simply concern straightforward matters such as the acknowledgement of receipt of correspondence. Similarly, a number of the records are external emails from the Council comprising the acknowledgement of receipt of correspondence from third parties. By the same token, a number of the records are completed site reports, land registry documents and maps, enforcement notices that have been issued, emails to complainants attaching such enforcement notices, correspondence to the developer attaching such enforcement notices, and proof of delivery of this correspondence. I cannot envisage a manner in which the release of any this information might harm the conduct of the relevant inquiries. It seems to me that the Council has sought to withhold all of the relevant records under section 30(1)(a) based solely on the fact that they relate to planning enforcement proceedings, regardless of their specific contents. This position is not sustainable for the purposes of section 30(1)(a), a claim for exemption under which must be made in light of the specific contents of each particular record. Accordingly I find that the records at issue are not exempt from release under section 30(1)(a).
Section 30(1)(b)
Like section 30(1)(a), section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. An FOI body seeking to rely on section 30(1)(b) should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. Again, a claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of significant.
In relation to section 30(1)(b), firstly I accept that the Council has identified a function relating to management, specifically its function as a planning authority and in the enforcement of planning regulations. Regarding the question of whether its expectation that the release of the records would have a significant, adverse effect on this function was reasonable, I would certainly accept, as a general proposition, that damage to the Council’s ability to effectively carry out its planning functions, and specifically planning enforcement proceedings, may constitute a significant, adverse effect on the performance of those functions. However, I am not convinced, based on the contents of the records, that such an effect can reasonably be expected to arise from their release. I consider that the Council has asserted the existence of the relevant harm that it believes would flow from the release of the records, but has not tied this belief to the contents of the records or explained what it is about the records that has led it to this belief. I have examined the records carefully and cannot identify specific information therein that it seems to me could reasonably be expected to result in such harm. Again, the Council appears to have effectively sought to exert a blanket exemption for the records on the basis of section 30(1)(b), which is not sustainable under this provision of the FOI Act. Accordingly, it is not clear to me how the release of the information in the records could reasonably be expected to result in a serious, adverse effect on the performance of the Council’s functions as a planning (and planning enforcement) authority. I find that the records are not exempt from release under section 30(1)(b) of the FOI Act.
Section 30(1)(c)
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test, and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
In seeking to rely on section 30(1)(c), an FOI body should identify the relevant negotiations at issue. In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, or information relating to the FOI body’s negotiating strategy, or its opening position with a view to further negotiation. Records relating to past, present or future negotiations may be protected under section 30(1)(c). Furthermore, ian FOI body should demonstrate that the release of the record could reasonably be expected to disclose positions taken (or to be taken), or plans etc used or followed (or to be used or followed) for the purpose of any negotiations. A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans or procedures etc used for the purpose of a negotiation. This Office has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations. Further, the likelihood that disclosure of certain information in the record might have particular consequences does not necessarily mean that its disclosure could reasonably be expected to result in the disclosure of a position or plan etc as envisaged by section 30(1)(c). The FOI body should show that the granting of access to the record could reasonably be expected to disclose a position, plan, procedure etc, as applicable.
In its submissions, the Council identified as the relevant negotiations those that had taken place between it and the developer, as a result of which the parties had agreed to place a stay on respective legal proceedings that each intended to bring, pending the determination of certain matters by An Bord Pleanála. I accept that these are negotiations for the purpose of section 30(1)(c). However, it seems to me that the records that pertain to these negotiations are among those that I have already determined to be exempt from release under section 31(1)(a). From an examination of the remaining records, I cannot identify any manner in which they might be said to either relate to the negotiations identified by the Council, or to disclose positions taken and plans, etc, for the purpose of those negotiations. In those circumstances, I take the view that the requirements of section 30(1)(c) are not met. While the Council has argued that the release of the information in the records could jeopardise the reciprocal agreement reached with the developer, as noted above the question of harm to negotiations is not one that arises in the context of section 30(1)(c), but rather whether positions, plans etc for the purpose of negotiations are disclosed Accordingly, I find that the records are not exempt from release under section 30(1)(c).
Section 37(1)
As outlined above, in the course of carrying out this review I formed the opinion that section 37(1) was potentially of relevance. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including, at point (ii), information relating to the financial affairs of the individual, at point (iii) information relating to the employment or employment history of the individual and, at point (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual.
In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
I consider that certain information in the relevant records is personal to individuals other than the applicant, for the purposes of section 2 of the FOI Act. In particular, I take the view that identifying material – names, email addresses and mobile telephone numbers – of elected representatives that appears in the records in the context of complaints and/or queries they made to the Council on the matter of the wind turbine, or which otherwise appear in the records (eg in the “Cc” fields of various emails to the Council) constitutes the personal information of those elected representatives. Furthermore, as well as information relating to elected representatives, some of the records contain information relating to members of the public. For example, certain records include the email addresses of individuals either in the “To”, “From” or “Cc” fields. In addition, the text in the body of certain emails that form part of the records contains the names and other information relating to individuals. I consider that any such instances of identifying material relating to individuals that appear in the records constitute the personal information of the relevant individuals. Furthermore, I consider that points 3 and 7 of the affidavit that comprises record 47 contains personal information relating to individuals.
For the avoidance of doubt, I considered whether certain other information that appears in the records was personal for the purposes of section 2 (for example, information identifying the developer and the developer’s agent). I am satisfied that any such information is in the public domain (as it is on the publicly available planning file) and therefore section 37(2), which puts outside the scope of section 37(1) 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, applies.
In relation to the information in the records that I have identified as personal, the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
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, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester 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, as noted above, the release of records under FOI must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under the legislation can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and, as noted above, a requester'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), 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) which provides that, in performing any functions under the legislation, 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In this case, the applicant he indicated that he required access to the records in the interests of transparency regarding the basis on which planning permission for the wind turbine had been granted. While the applicant has essentially expressed a private interest for his request, it seems to me that his reasons are reflective of a public interest in ensuring that planning applications are processed by planning authorities appropriately and correctly.
On the other hand, 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 FOI 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. 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. 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).
I consider that the release of the information I have identified in the records as personal would serve to enhance transparency in relation to the approval of the planning application for the wind turbine only in the most limited manner. At the same time, while the relevant information is not inherently sensitive or private, the fact remains that it is personal to the individuals concerned and I must regard its release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply and, accordingly, I find that the information in the records that I have identified above as personal is exempt from release under section 37(1).
Section 32(1)(a)
The Council cited subsections (i), (ii) and (iv) of section 32(1)(a) of the FOI Act as grounds to withhold each of the remaining 38 records at issue. Section 32(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to 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,
(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other Tribunal.
Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing so, the FOI body should show how or why releasing the particular record
could reasonably be expected to cause the harm which it has identified.
The Commissioner considers that the words "prejudice" and "impair" were not intended to be synonymous and so, taking their ordinary literal meaning, the FOI body should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). Furthermore, the Commissioner’s view is that the test in section 32(1)(a) is not concerned with the question of probabilities or possibilities, but with whether or not the expectation of harm is reasonable. Moreover, an FOI body relying on section 32(1)(a) should show how release of the particular record could reasonably be expected to result in the harm(s) identified. A mere assertion of expected harm is insufficient.
Sections 32(1)(a)(i) and (ii)
In its submissions, the Council made a number of arguments under section 32(1)(a) pertaining to the records that comprise correspondence exchanged between it and its legal advisors. However, I have already found that all such records are exempt under section 31(1)(a).
The Council argued that many of the remaining records related mainly to details of complaints made by elected representatives, and associated correspondence, as well as details of internal communications in relation to the investigation of the complaints and the preparation of a planning Enforcement Notice. It argued that this information would be critical to relevant Judicial Review proceedings. It stated that such proceedings, if they proceeded, would examine whether the Council was justified in serving an Enforcement Notice on the developer. It set out its current understanding of the developer’s position, which in short is that the Council was not entitled to bring enforcement proceedings. According to the Council, central to its position to the contrary was the number of complaints received on the matter. The Council argued that the release into the public domain of the information in the records relating to complaints by public representatives about the relevant development could lead to pressure being put on those public representatives to withdraw their complaints which, the Council argued, would weaken its argument regarding the nature of the alleged planning infringement. The Council also stated its view that the developer was likely to contest enforcement proceedings vigorously, and also referred to the fact that the release of records under FOI is not subject to any restrictions and is generally considered to be release to the world at large.
I have carefully considered the arguments of the Council in relation to these records, and I find as follows. Firstly, I accept that the Council has identified a relevant harm that it believes would flow from the release of the records, namely harm to its ability to bring enforcement proceedings in this case. Moreover, I accept that that harms identified by the Council, should they come to pass, would meet both the standards of prejudice and impairment to the matters specified in subsections (i) and (ii) of section 32(1)(a).
I am less convinced that the Council’s expectation – that the harms it has identified could flow from the release of the records – is reasonable. Firstly, I consider that the Council’s argument, that public representatives who made complaints regarding the development could withdraw their complaints due to pressure put upon them because of the disclosure of the fact of them having complained, is effectively rendered moot by my finding that identifying information in relation to such representatives is exempt from release under section 37(1). However, even if I had not made this finding under section 37(1), I consider the Council’s argument here to be highly speculative. There is no evidence before me to support the assertion either that such pressure would be put on the relevant representatives, or that – if such pressure was to come to pass – the relevant public representatives would reverse their position. Certainly, there is nothing in the contents of the specific records at issue that could lead me to this conclusion. The Council has not outlined from whom it believes such pressure would come, or how it believes this would lead the relevant representatives to withdraw their complaints. It seems to me that such pressure, should it arise, could feasibly come from constituents of the relevant elected representatives. However, it seems equally likely to me that the disclosure of the fact of the representatives having made their complaints would also meet with the support of many constituents, a position that is borne out by the number of records that comprise complaints from residents of the locality that echo the concerns of the representatives.
Secondly, the Council outlined that, central to its argument that enforcement proceedings are warranted, is the number of complaints received in relation to the development. I am of the view that the number of complaints from public representatives on the matter is dwarfed by the number of complaints made by members of the public. Therefore, even if I were to accept that the release of the records could cause the complaints from public representatives to be withdrawn, the fact remains that a very significant number of complaints would still be on file. Accordingly, even if I were to accept that the withdrawal of complaints from public representatives would come to pass as a result of the release of the records, I do not accept that this would have a significant weakening effect on the Council’s position that enforcement proceedings are warranted.
Regarding the Council’s view that the developer would likely contest enforcement proceedings, and that the release of records under FOI is generally considered to be release to the world at large, I would note that neither of these points, on their own, comprise a sufficient basis on which to refuse to release records under sections 32(1)(a)(i) and/or (ii). It does not follow either from the fact that the developer would contest the proceedings, or that the release of the records is essentially release to the world at large, that such release will prejudice or impair the matters addressed in section 32(1)(a)(i) and/or (ii).
In addition, I cannot see how the Council’s arguments under section 32(1)(a)(i) and (ii) apply to the remaining records that include site reports, the relevant Enforcement Notices and associated correspondence and proof of delivery of same, affidavits that have been filed in the context of the Judicial Review proceedings, and land registry documents, maps and information from the CRO regarding the developer of the wind turbine. These records are not among those attached to (or enclosed with) correspondence exchanged between the Council and its legal advisors, and nor are they records revealing the objections of elected representatives to the wind turbine. I cannot identify a manner in which their release could reasonably be expected to result in the harms provided for by sections 32(1)(a)(i) or (ii).
Section 32(1)(a)(iv)
The Council also sought to rely on subsection (iv) of section 32(1)(a)(iv). In correspondence with this Office, it stated that the pending High Court proceedings related to a challenge of an Enforcement Notice issued by the Council. The Council outlined that it was possible for an Enforcement Notice to be the initiating document in a potential criminal prosecution. The Council noted that the Enforcement Notice in this case is currently the subject of pending Judicial Review proceedings before the High Court, and advised that the possibility was still live that it would be the initiating document upon which a criminal prosecution may be based. It followed, according to the Council, that disclosure of records comprising affidavits that critiqued or sought to undermine the Enforcement Notice could be prejudicial to any future prosecution. I note that, while the Council specifically sought to rely on section 32(1)(a)(iv), it did not explicitly identify any part of its correspondence as comprising a submission under that provision of the FOI Act. However, I consider that the above argument of the Council essentially amounts to an argument under section 32(1)(a)(iv).
In relation to the Council’s arguments regarding the harms it claims could result from the release of the records to any future criminal proceedings, I find as follows. I would first of all note that the wording of section 32(1)(a), which requires an FOI body to show prejudice or impairment to the relevant matters, sets a high bar, and it does not follow from the fact alone of information pertaining to those matters being released that this bar is cleared. The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of the relevant proceedings. In my view it does not follow, from the fact alone that criminal proceedings may follow in future, that the release of records could reasonably be expected to prejudice the fairness of any such proceedings. Furthermore, the making available by an FOI body of evidence in advance of a criminal trial hearing does not, in principle, prejudice or impair the fairness of the hearing.
I note that this Office has previously held, in Case 090073, that the fact that a record may relate to the investigation of criminal offences and potentially to matters of evidence in criminal proceedings does not, in itself, establish that one of the exemptions under section 32 of the FOI Act applies; otherwise, the FOI Act would provide for a class-based exemption for such records, which it does not. On the contrary, the FOI body should have regard to what the records actually reveal, and show how release of the particular information in the records could reasonably be expected to result in the harms asserted.
I am not satisfied, based on the contents of the records, that the Council’s expectation of harm to the fairness of possible future criminal proceedings is reasonable. For one thing, the affidavits that critique or seek to undermine the Enforcement Notice are those filed by the developer, who would logically be the defendant in any future criminal proceedings. Thus, the release of the information in these records would not result in the defendant in any future proceedings being made aware of any information to which it was not already privy. Furthermore, even if I were to accept that the release of the information in the relevant records was likely to provide a potential defendant, or for that matter any other relevant party, with hitherto-unknown information, to my mind it does not follow that this would be likely to result in prejudice to, or impairment of, criminal proceedings. There is nothing to prevent the defence in any future criminal proceedings from rebutting the evidence against a defendant, which it would be required to do in any case, irrespective of the release of the relevant records. Equally, there is nothing to prevent the prosecution in any future proceedings from refuting information in the records which might weaken its case. Moreover, I consider that the court hearing and consideration of evidence in any future criminal case are likely to have far greater impact than any viewing of records released under FOI by any relevant party in advance. In any case, any inferences or conclusions that may have been drawn as a result of such viewing can be effectively obviated by warnings and directions by the judge as and when appropriate.
I also consider that section 32(1)(a)(iv) does not apply to the records I have identified above that comprise include site reports, the Enforcement Notices and associated correspondence and proof of delivery of same, affidavits that have been filed in the context of the Judicial Review proceedings and land registry documents, maps and information from the CRO regarding the developer of the wind turbine. None of these records comprise, or are related to, the affidavits seeking to undermine the Enforcement Notice, and therefore it does not seem to me that the Council’s arguments under section 32(1)(a)(iv) pertain to those records.
Accordingly, I find that the records are not exempt from release under section 32(1)(a)(i), (ii) or (iv).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find the Council was entitled under section 31(1)(a) to withhold access to records 38, 44, 48-49, 51, 55-75 and 77-93. I also find that the information in the records that I have identified as personal is exempt from release under section 37(1). However, I find that the Council was not justified in withholding the remainder of the records under any of the other exemptions upon which it sought to rely, and I direct the release of those records.
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 requester 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.
Neill Dougan
Investigator